THEINDIAN SUCCESSION

ACT, 1925(39 of 1925)

As Amended ByThe Indian Succession (Amendment) Act, 2002

(26 of 2002)With

State Amendments

ByDr. V.N. TRIPATHI

LLM., Ph. D. in Law(Advocate High Court)

2005

PREMIER PUBLISHING CO.40C/34, Elgin Road

CMI Unos, Allahabad - 211 001Phono No.: (Off.) 2420405. (Res.) 2697355

ReHance—0532-9335150723

CONTENTSPARTI

PRELIMINARYSections Pages

1. Short titte. 1

1. Applicability to Cochm Chrisüan Succession Act. ... 1

2. Applicability to Cutchi Memons. ...2

3. Applicability in Sikkim. ...3

2. Deflnitions........~ . .—. . . 2

1. Codicil. .4

(i) Codicil is supplement to the Will. ...4

(ii) Date of Will comes down to tbe date of codicil. .. .4

(iii) Jurisdiction over codicil. ...4

2. District Judge. ...5

3. Executor. .5

(i) Executor must bc named by Will. ...5

(ii) Executor by implicatie». ...5

(iii) Accepunce of office. ...6

(iv) Executor de urn ton Le. wbere iegatee (akes possession

unauthorisedly. .6

4. Indtan Christian. ...6

(i) Fbnnal conversion. ...6

(ii) No cbotce of law to cooverted person. ...6

(iii) Applicability of Tbe Caste Disabüióes Removal Act.

1850. ...6

5. Probate. ...7

(i) Effect and evidentiary value. ...7

(ü) Scope of inquiry m probate proceedmgs. ...7

6. -WUl". ...7

(i) Tbe concept, ongin and object of Will. ...7

(ii) HistoryofHinduWilL .8

(III) Definiüon and charactensucs of Will. .. .8

(tv) A documem detcnbed as Will may not be a Wilt. .10

(v) Revocability. ...10

(Vnj

VIII The Indian Succession Act, 1925

Sections Pages(vi) "Witfci respect to his property". ...10

(vii) Bequmest of Shebaitship. ...11

(viii) Bequmest of suit property. ...11

(ix) Property acquired after date of Will. ...11

(x) "To fc>e carried out into effect after his death." ...11

(xi) T i m ^ when validity of Will is to be determined. -12

(xii) Secti o n 2(h) and Transfer of Property Act, Sec. 5—Will

whetiier transfer? ...12

(xiii) Diffesrence between gift and Will. -12

(xiv) A d e ^ d can partly be gift and partly Will. -13

(xv) "Joimt Will" and "Mutual Will". -13

(xvi) Joint Will when becomes operative. - ^

(xvii) Settlement and Will. -15

(xviii) Will and adoption deed. - ^

(xix) Kindteed roll is not a Will of soldier. -1*

(xx) Noimination for provident fund. - ^

(xxi) Question of validity of clauses or usefulness of Willwhi le constructing document. - 1

(xxü) Rele~vancy of Will of living person. •••"

(xxiii) Oral Will. -17

(xxiv) Holograph Will. -18

18(xxv) Beqoest of joint family property. -

(xxvi) Will by widow having life interest only. -

3. Power of State <Jovernment to exempt any race, sect or tribein the State fro*n operation of Act....... ... ........—. • — "

PART IIOF DOMICILE

IA

4. Application of P a r t1. Meaning of domicile.2. Domicile and personal law.3. Nun's right in her father's property.4. Right of adtopted child after conversion of his parent.

5. Law regulating succession to deceased person's immovableand movabie property respectively....... .................. •

1. Applicabilïty of Local Law.2. Sections 5, 29(2) and Travancore Christian Succession Act.

6. One domicile only, affects succession to movables ....... •

7. Domicile of origin of persons of legitimate birth.......................

Contents IX

Sections Pages

8. Domicile of origin of illegitimate child 21

9. Continuance of domicile of origin 22

1. Domicile and Nationality. ...222. Presumptions in favour of original domicile. ...22

10. Acquisition of new domicile. 22

11. Special mode of acquiring domicile in India. 23

12. Domicile not acquired by residence as representative offoreign Government or as part of his family 24

13. Continuance of new domicile. 24

14. Minor's domicile 24

15. Domicile acquired by woman on marriage.. .... 24

16. Wife's domicile during marriage...................................................... 24

17. Minor's acquisi tion of new domicile................................ ........ 25

18. Lunatic's acquisition of new domicile........... ....... 25

19. Succession to movabie property in India in absence of proofof domicile elsewhere...... . . .... ................ 25

PARTm

MARRIAGE20. Interests and powers neither acquired nor lost by marriage........... 25

21 Effect of marriage between person domiciled and one notdomiciled in [India]. 26

22. Settlement of minor's property in contempiation ofmarriage. 26

PART IV

OF CONSANGUINITY

23. Application of Part .~.~~...~~.....~~...................~..~........~............... 26

24. Kindred or consanguinity.................................~~~..~~.................... 26

25. Lineal consanguinity. ....................~...~..~.~..~~.~.~~..~~~~.~.~~.— 26

26. Collateral consanguinity. ^~..^...~~..~^.....~..~^~~.......~~..-.—... 27

27. Persons held for purpose of succession to be similarly relatedto deceased..............................................~.~~~~~~.~~~..................... 27

1. Legislation caimot change the status of relationship underpersonal law. ...28

X The Indian Succession Act, 1925

Sections Pages2. Stepchild. ...283. Section 27 and The Hindu Marriage Act, Sec. 16(3). ...284. Section 27 and The Workmens Compensation Act, 1923, Sec.

2(d). ...28

28. Mode of computing of degrees of kindred.. 28PARTV

INTESTATE SUCCESSIONCHAPTER1

PRELIMINARY

29. Application of Part . . . ............................................................ 291. Applicability of Part V. ...29

2. Hindu marrying under The Special Marriage Act, 1954. ...29

3. Part V of the Act applicable to Christian Priest. -30

4. Rights of Christian daughters. —30

5. Applicability of the Act on Jews. -30

6. Chinese Buddhists—Whether Buddhists within exceptions to

Sec. 29? -30

7. Section 29(2)—"Any other law for the time being in force". -31

(i) The Punjab Laws Act. -31

(ii) Adoption by Christian. —31

(iii) Whether Indian Christian in Punjab can make a validadoption? —31

(iv) Adopted child of Christian in territories governed byBengal, Assam and Agra Civil Courts Act. —31

(v) Section 29(2) and The Travancore Christian SuccessionAct. -32

30. As to what property deceased considered to have diedintestate 34

CHAPTER II

RUI.ES IN CASES OF INTESTATE OTHER THAN PARSIS

31. Chapter not apply to Parsis 34

32. Devolution of such property........ ................................ . 34

33. Where intestate has left widow and iineal descendant? orwidow and kindred only, or widow and no kindred....................... 35

1. Bigamus marriages. —35

2. Devolution of Christians property, when he left no Iinealdescendant. - 3 6

Contente XI

Sections Pages

33-A. Special provision where intestate has left widow and noIineal descendants 36

34. Where intestate has left no widow, and where he has left nokindred 37

35. Rights of widower. 37

Distribution where there are Iineal Descendants

36. Rules of distribution 38

37. Where intestate has left chiid or children only 381. Child. ...382. Lineal descendant. ...38

38. Where intestate has left no child, but grand-child or grand-children 38

39. Where intestate has left only great-grand-children orremoter lineal descendants 39

40. Where intestate leaves lineal descendants not all in samedegree of kindred to him, and those through whom the moreremote are descended are dead............. 39

Distribution where there are no lineal descendants

41. Rules of distribution where intestate has left no linealdescendants 40

42. Where intestate's father living 40

43. Where intestate's father dead, but his mother, brothers andsisters living 40

44. Where intestate's father dead and his mother, a brother orsister, and children of any deceased brother or sister living 41

45. Where intestate's father dead and his mother and children ofany deceased brother or sister living. 41

46. Where intestate's father dead, but his mother living and nobrother, sister, nephew or niece. ...... 41

47. Where intestate has left neither lineal descendant nor father,nor mother 41

48. Where intestate has left neither lineal descendant norparent nor brother, nor sister..., 42

49. Children's advancements not brought into hotchpot 42

The Indian Succession Act, 1925

Sections Pages

CHAPTER III

SPECIAL RULES FOR P A R S I I N T E S T A T E S

50. General principles relating to intestate succession 42

51. Division of intestate's property among widow, widower,children and parents 43

52. [Repealed by Act 51 of 1991] 43

53. Division of share of pre-deceased child of intestate leavinglineal descendants 44

54. Division of property where intestate leaves no linealdescendant but leaves a widow or widower or a widow orwidower of any lineal descendant 44

55. Division of property where intestate leaves neither linealdescendants nor a widow or widower nor [a widow orwidower of any lineal descendant] 45

56. Division of property where there is no relative entitled tosucceed under the other provisions of this Chapter 45

PART VI

TESTAMENTARY SUCCESSIONCHAPTERI

INTRODUCTORY

57. Application of certain provisions of Part to a class of Willsmade by Hindus, etc 46

1. Origin of concept of Will amongst Hindus. —47

(i) Whether concept of Will was brought into Hindus undeiinfluence of Mohammedan law. —48

2. Testamentary disposition in Sikkim. —493. Will by Hindu regarding joint family property. —504. Will by Hindu in favour of non Hindu. —505. "Hindu", need not be a member of some caste. - 5 06. A Christian cannot be a Hindu only by belief without forma

con version. —517. Brahmo is Hindu. —518. Secüon 57 and Sec. 213. - 5 19. Section 57 and Sec. 97. - 5 2

10. Section 57 and Schedule ffl clause (2). - 5 211. Section 57 not applicable to Will executed by Indian Christian. —5312. Bequestof remainder. —53

Contents XIII

Sections Pages13. Unattested Will before 1927 executed beyond local limits

prescribed under Sec. 57. ...53

58. General application of Part 53

CHAPTER II

OF WILLS AND CODICILS

59. Person capable of making Wills 54...55...55...56...56...57...57...59...60...62...63...63...63...64...64...64...64...65...66...66...66...66...66

60. Testamentary guardian 67

61. Will obtained by fraud, coercion or importunity. 671. Free agency of testator. ...682. Fraud and misrepresentation. ...68

(i) Fraud. ...68(ii) Silence. ...68

(iii) Misrepresentation. ...69(iv) Flattery without fraud or misrepresentation is not undue

influence. -693. Coercion. -69

1.2.3.

4.5.6.7.8.9.

10.11.12.13.

14.15.

16.17.

Sound mind.Disposing state of mind.Minor.

(i) Burden to prove agc of testator.(ii) Married minor woman.

Proof of testamentary capacity.Presumption of sanity.

Burden of proof.

Standard of proof.Non-examination of Doctor.

Stage—When plea of incapacity can be raised?Married women.Deaf, dumb and blind persons.Interval in sanity.Other causes affecting soundness of mind.

(i) Oldage(ii) Illness

(iii) InfirmityInsane testator in a joint Will.Foolish and heartless disposition.Registration—Not decisive of testamentary capacity.

The Court cannot regulate the right to execute a Will.

XIV The Indian Succession Act, 1925

Sections Pages4. Importunity. -69

5. Importunity and canvassing. ...70

6. Undue influence. ...70

(i) Undue influence—What constitutes? ...71

7. Legatee's presence at the time of execution of Will. -72

8. Benefit taken by propounder. -73

9. Disinheritance of natural heirs. -74

10. Benefit under Will given to Advocate. -75

11. Benefit given to scribe. -75

12. When language is technical. -75

13. Presumptions: -75

(i) Undue influence from relationship. -75

(ii) Non-revocation of Will. -75

(iii) Section 90 of The Evidence Act. - 7 6

(iv) Knowledge of contents. - ^

(v) Reasonableness of terms of Will. -76

(vi) Untrue statement and inequitous disposition. -76

(vii) Illiterate testator. - 7 7

(viii) Pardanashin Lady. - 7 7

14. Burden of proof: - 7 7

(i) On the party who alleges undue influence. - 7 7

(ii) On propounder of Will. - 7 °

15. Undue influence and forgery. -®

16. Any part of Will may be valid. - ^

62. Will may be revoked or altered 81

1. Revocation under fraud, coercion, importunity, undueinfluence. -81

2. Presumption as to revocation. -81

CHAPTER III

OF THE EXECUTION OF UNPRIVILEGED WILLS

63. Execution of unprivileged Will .. ...... 8 l

1. Applicability. -83

2. No retrospecüve effect. -83

3. Governing tests for valid execution of Will. -83

4. Execution and Attestation—Meaning. -84

5. Signature. -856. Mark. -85

Contents XV

Sections Pages(i) Meaning of Mark. ...85

(ii) Thumb-impression by literate person. ...85(iii) Putting thumb impression does not create presumption of

illiteracy. ...867. Delegation of power of signature. .. .868. Place of signature or mark. ...87

(i) Signature with intention to authenticate the Will. ...87(ii) Where some pages of Will not signed. ...87

9. Attestation. ...88(i) Meaning of attestation. ...88

(ii) Sign and mark. ...88(iii) Distinction between signing and attesting. ...88(iv) Two witnesses. ...89(v) Form of attestation. ...90

(vi) Sign in the presence of the testator. ...90(vii) Certification by witnesses that the testator signed Will in

their presence. ...91(viii) Acknowledgement of signature of testator. .. .92

(ix) Attestation before signature of testator. ...92(x) Attestation of factum of execution of Will not the

signature of testator. .. .93

(xi) Testimony of attesting witness. ...93

(xii) Attestor cannot direct some other person to sign. ...94(xiii) Selection of attestor. ...94(xiv) Illiterate attestor. ...95(xv) Knowledge of contents to attesting witness. ...95

(xvi) Inter-se Identification of witnesses. ...95(xvii) Both witnesses need not be present simultaneously. ...96

(xviii) Presumption of regularity. ...96(xix) Identifier and Registrar may become attesting witness. ...97(xx) Scribe as attesting witness. ...99

10. Will without signature of scribe. ... 10111. Registration of Wills. ...101

(i) Registration not necessary. ... 101(ii) Value of registration—General presumption. ... 102

(iii) Cases wbere it was held that registration is not proof ofdue execution. ...103

(iv) Cases wbere it was held that registration is strong proofof due execution. ... 104

(v) Registration in wrong book. ...105(vi) Registration of Will after death of testator. ... 105

12. ProvingofWill. ...106

XVI The Indian Siiccession Act, 1925

Sections(i) General principles. .106

(ii) Mode of proving. -107

(iii) Evidence of at least one attesting witness. ...109

(iv) Additional evidence in appeal where no attesting witnesswas examined before Trial Court. -110

(v) When none of the attesting witnesses is available. ...110

(vi) What to be proved ? -111

(vii) Burden of proof. -112

(viii) Appreciation of evidence. -114

(ix) Memory of witnesses and conflicting statements. ... 117

(x) Non-examination of writer. -117

(xi) Proving by certified copy of Will. ... 117

(xii) Satisfaction of Court is mie of prudence, not rule of law. ...118

13. Suspicious circumstances. .119

(i) General principles. -119

(ii) Disinberitance of natural heirs. ...121(iii) Delayed production of Will. -126(iv) Shaky signature. -128(v) Blurred thumb impression. -128

(vi) Thumb mark by literate testator. .128(vii) Holograph Will. -128

(viii) Untrue statement in the Will. -129(ix) Prominent part taken by propounder in preparation of

Will. -129(x) Presence of propounder at the time of execution of Will. -130

(xi) Major benefit under Will taken by propounder. -131(xii) Difference in writing. -131

(xiii) Paper on which Will was written. -132(xiv) Opinion of handwriting expert. -132(xv) Court's power to compare handwriting. "133

(xvi) Language of testator. -133(xvü) Hostile attestor. ...134

(xviii) Chance witness. -134(xix) Ageand health of testator. -135(xx) Non-description of property in the Will. -135

(xxi) Selection of scribe. -136(xxii) Other heirs as attesting witness. -13*>

(xxiii) Challenge after probate. -136(xxiv) Interested attesting witness. - 1 3 7

(xxv) When any of suspicious facts escaped from pleadings. -137

Contents XVTJ

Sections Pages(xxvi) Cutting on Will. ...137(xxvii) When attesting witness is beneficiary under Will. ... 137

14. Applicability of Secs. 90 of Evidence Act. ... 13715. Legatee takes as persona designata not as a relative. ... 13716. Will in several sets. ...137

64. Incorporation of papers by reference. 138CHAPTER IV

OF PRIVILEGED WILLS

65. Privileged Wills 138

66. Mode of making, and rules for executing, privileged Wills 138CHAPTER V

OF THE ATTESTATION, REVOCATION, ALTERATION ANDREVIVAL OF WILLS

67. Effect of gift to attesting witness 139

68. Witness not disqualified by interest or by being executor 140

69. Revocation of Will by testator's marriage. 1401. Effect of adoption. ...1402. Explanation. ...141

70. Revocation of unprivileged Will or codicil . 1411. Revocation and cancellation. ...1412. Subsequent Will. ...1423. Written revocation. ...1434. Revocation by destroying. ...1435. Animo revocandi. ...1436. AlienationofpartofWill. ...1447. Presumption of revocation. ...144

(i) Presumption when Will missing at the time of death. ... 1448. Burden of proof. -145

(i) Oral evidence of revocation. ...1459. Applicability of Section 90 of Evidence Act. ...145

10. No revocation by change in circumstances. ... 14511. Revocation of joint Will. .14612. Subsequent disposal of property under Will. ...146

71. Effect of obliteration, interlineation or alteration inunprivileged Will 146

72. Revocation of privileged Will or codicil 146

XVIII The Indian Succession Act, 1925

Sections Pages

73. Revival of unprivileged Will 147

CHAPTER VI

O F T H E C O N S T R U C T I O N O F W I L L S

74. Wording of Will 147

1. Scope. -148(i) Principles for construction of Will. .148

2. Application of English principles in construction of Will. -.1483. Application of precedents in construction of Will. -1514. Translation of Will. -151

5. Presumption against intestacy. —1516. Construction of words. "151

(i) Technical Words. -151(ii) Will itself is taken as the dictionary. .152

(iii) The Golden Rule. -152(iv) Malik. -153(v) "Malikana". •••153

(vi) "Malik wa Kabiz". -153

(vii) "Cash in hand". - I 5 4

(viii) "Money in kind". - l 5 4

(ix) Santhanam. ...155

(x) Vyavastha Patrak. - l 5 5

7. Ascertainment of intention of testator. -15*

(i) The Arm Chair Rule. - I 5 5

(ii) The Court cannot apply U's own notions. -156

(iii) Question of convenience in partition according to Will. .156

(iv) Bequest to son—Whether devolves as ancestral property? - 1 5 7

(v) Legatees take as tenancy-in-common. —15'

(vi) Absolute interest or life estate. - 1 5 7

(vii) Maintenance grant. —1*"

(viii) Hindu widow's estate or life estate. -1^3

(ix) Will or any other deed? -X(A

(x) Other cases. - l 6 5

(xi) Right of selection when certain portion out of total land

is granted by Will. - l 6 6

8. Defeasance clause and repugnant clause. - 1 ^

9. Joint and mutual Will. - 1 ° 7

10. Legatee cannot dispute testator's title. -1^8

Contents XIX

Sections Pages

75. Inquiries to determine questions as to object or subject of

Will 168

76. Misnomer or misdescription of object 168

77. When words may be supplied 170

78. Rejection of erroneous particulars in description of subject........ 170

79. When part of description may not be rejected as erroneous 1701. Construction of marginal notes. ...1712. Obligation on legatee. ...171

80. Extiinsic evidence admissible in cases of patent ambiguity 171

81. Extrinsic evidence inadmissible in case of patent ambiguityordeficiency 172

82. Meaning of clause to be collected from entire Will 1721. Scope. ...173

(i) Construction of Will. ...1732. Determination of nature of document. ...1753. Determination of nature of grant. ...1764. Whether testator created trust or gave power? ...179

83. When words may be understood in restricted sense andwhen in sense wider than usual 179

84. Which of two possible constructions, preferred 180

85. No part rejected, if it can be reasonably construed........................ 181

86. Interpretation of words repeated in different parts of Will 181

87. Testator's intention to be effectuated as far as possible 181

88. The last of two inconsistent clauses prevails .... 1831. Construction of inconsistent clauses. ...1832. Interpretaüon of inconsistent clauses. ...183

3. Inconsistent provisions in Will—Construction. ...184

89. Will or bequest void for uncertainly . 185

1. Uncertainty. ...1852. Bequest for uncertain object or of uncertain property. ...1863. Khairat. -1864. Punyakriya. ...1875. "DharmaKriya". ...1876. "Trust" and "Power". -1877. AmbiguUyonthefaceoftheWül. ...187

8. Right of selection to legatee. ...187

XX The Indian Succession Act, 1925

Sections Pages90. Words describing subject refer to property answering

description at testator's death 1881. Presumption. -188

(i) Validity of Will—When to be determined? -1882. Presumption of genuineness of Will. -1893. Will by Hindu widow of widow's estate prier to The Hindu

Succession Act, 1956 and her death after the Act, came intoforce. "189

4. Will of specific property. -189

91. Power of appointment expected by general bequest 189

92. Implied gift to objects of power in default of appointment 190

93. Bequest to "heirs", etc. of particular person withoutqualifying terms 190

94. Bequest to "representatives", etc. of particular person 191

95. Bequest without words of limitation 1911. Whole interest. - I 9 2

2. Life estate and absolute interest. -1™

96. Bequest in alternative. 19397. EfftU of words describing a class added to bequest to

98. Bequest to class of persons under general description only ^

99. Construction of terms............................... , 1 ^

100. Words expressing relationship denote only legltimaterelatives or failing such relatives reputed legitimate. ••••• ^"

101. Rules of construction where Will purports to make twobequests to same person „. 1 ^

102. Constitution of residuary legatee. ,..,„..., » • • l 9 9

103. Property to which residuary legatee entitied. 201

104. Time of vesting legacy in general terms...,..............................».»— ^

105. In what case legacy lapses. 2021. Legatee's death before testator. • • -2032. Section 105(2) and The Hindu Succession Act, Section 21. -2 0 3

3. Devolution on residuary legatee. - 2 " 4

4. Bequest t o a person and his putra pautradi. -2°45. Legatee's take as individual not as joint tenants. -2 0 4

Contents XXI

Sections Pages

106. Legacy does not lapse if one of two joint legatees dies beforetestator 204

1. Scope. ...205

2. Joint tenancy or tenancy-in-common. ...205

3. Construction of conditions and intention. ...206

107. Effect of words showing testator's intention to give distinctshares 207

108. When Iapsed share goes as undisposed of. 208

109. When bequest to testator's child or lineal descendant doesnot lapse on his death in testator's lifetime. 208

1. "Any child". ...2082. Illegitimate child. ...2083. Death of legatee in testator's lifetime. ...2094. Ünless contrary intention appears. ...209

5. Conflict between Sections 106 and 109. ...209

110. Bequest to A for benefit of B does not lapse by A 's death 210

111. Survivorship in case of bequest to described class......................... 2101. Normal rule in case of bequest to class. ...2112. Vesting of property and ascertainment of class of persons. ...2113. Determinative date of distribution. ...2124. "Specified individual". ..212

CHAPTER-VII

OF VOID BEQUESTS

112. Bequest to person by particular description, who is not inexistence at testator's death..................„.........^..«.......................... 213

1. Scope. ...2132. Will in favour of non-existent person . ...2133. Bequest to deity. ...214

113. Bequest to person not in existence at testator's death subjectto prior bequest ..............~...................................~......................... 214

114. Rule against perpetuity . . 2161. Successivelifeestates. ...2172. Applicability to charitable bequests. ...218

115. Bequest to a class of persons some of whom may come underrules in Sections 113 and 114 218

116. Bequest to take effect on failure of prior bequest 219

XXII The Indian Succession Act, 1925

Sections Pages

117. Effect of direction for accumulation 219

118. Bequest to religious or charitable uses 220

1. Applicability and constitutionality. -221

2. Near relatives. -222

3. Charitable uses. "222

4. Bequest to organisations of politica] nature. •2235. Word "deposited". -224

6. Withdrawal of Will from the custody of Registrar. -224

CHAPTER VIII

OF THE VESTING OF LEGACIES119. Date of vesting of legacy when payment or possession

postponed 224

1. Applicability. -225

2. Life estate. •••225

3. Vested and contingent interest. •••*"

(i) Vested or contingent interest? -22"

4. Date of vesting legacy. -^99Ji

5. Vested remainder. ••••"*99Ji

6. Power of residuary legatee. -120. Date of vesting when legacy contingent upon specified

uncertain event910

1. Contingent and vested interest. -2. Exception. -23°

121. Vesting of interest in bequest to such members of a class asshall have attained particular age.

CHAPTER IX

OF ONEROUS BEQUESTS122. Onerous bequests ^123. One of two separate and independent bequests to same

person may be accepted, and other refused .. . — • ^CHAPTERX

OF CONTINGENT BEQUESTS124. Bequest contingent upon specified uncertain event no time

being mentioned for its occurrence....................................»—•—•- ^1. Scope and applicability. -l

2. This Section provides rule of law not of construction. -

Contents XXIII

Sections Pages3. Contingent bequest. ...2344. Successive life estates by Hindu Will. ...236

125. Bequest to such of certain persons as shall be surviving atsome period not specified 236

CHAPTER XI

OF CONDITIONAL BEQUESTS

126. Bequest upon impossible condition 237

127. Bequest upon illegal or immoral condition 237

128. Fulfïlment of condition precedent to vesting of legacy 2381. Condition cannot be imported from outside the Will. ...2382. Fulfilment of condition. ...239

129. Bequest to A and on failure of prior bequest to B 240

130. When second bequest not to take effect on failure of first 241

131. Bequest over, conditional upon happening or not happening

of specified uncertain event................................................... 241

132. Condition must be strictly fulfilled . 243

133. Original bequest not affected by in validity of second 243134. Bequest conditioned that it shall cease to have effect in case a

specified uncertain event shall happen or not happen 244135. Such condition must not be invalid under Section 120 244

136. Result of legatee rendering impossible or indefinitelypostponing act for which no time specified, and on non-performance of which subject-matter to go over............................ 245

137. Performance of condition, precedent or subsequent withinspecified time—Further time in case of fraud......................... 245

CHAPTER XII

OF BEQUESTS WITH DIRECTIONS AS TOAPPLICATION OR ENJOYMENT

138. Direction that fund be employed in particular mannerfollowing absolute bequest of same to or for benefit of anynercnn ..... i.................................................................................... 245

1. Applicability. ...2462. Restraint. ...246

(i) ConstructioofWill. ...246

139. Direction that mode of enjoyment of absolute bequest is tobe restricted to secure specified benefit for legatee...................— 247

XXIV The Indian Succession Act, 1925

Sections Pages140. Bequest of fund for certain purposes, some of which cannot

befulfilled 247CHAPTER XIII

OF BEQUESTS TO AN EXECUTOR141. Legatee named as executor cannot take unless he shows

intention to act as executor 2481. Intention to act as executor. -2492. Missing words. —2493. Advocate as executor. -249

CHAPTER XIVO F SPECIFIC LEGACIES

142. Specific legacy defined. .................................................................. 2*1

143. Bequest of certain sum where stocks, etc. in which investedare described..... .. .... ........................................—..........«•••••252

144. Bequest of stock where testator had at date of Will, equal orgreater amount of stock of same kind.................................»»-"- ®

145. Bequest of money where not payable until part of testator'sproperty disposed of in certain way......... ..................••••••••" ^

146. When enumerated articles not deemed specificallybequeathed..........................................................................»»—»""^

147. Retention, in form, of specific bequest to several persons insuccession •

148. Sale and investment of proceeds of property bequeathed totwo or more persons in succession ™

149. Where deficiency of assets to pay legacies, specific legacy notto abate with general legacies

CHAPTER XVOF DEMONSTRATIVE LEGACIES

254150. Demonstrative legacy defined........ . ..............—.—•••—•• *^151. Order of payment when legacy directed to be paid out of

fund the subject of specific legacy .... - ^CHAPTER XVI

OF ADEMPTION OF LEGACIES256

152. Ademption explained. ....................................................«•«•••••••••"•153. Non-ademption of demonstrative legacy.........................—•

Contents XXV

Sections Pages

154. Ademption of specific bequest of right to receive somethingfrom third party 257

155. Ademption pro tanto by testator's receipt of part of entirething specifically bequeathed 257

156. Ademption pro tanto by testator's receipt of portion of entirefund of which portion has been specifically bequeathed 258

157. Order of payment where portion of fund specificallybequeathed to one legatee, and legacy charged on same fundto another, and testator having received portion of that fund,remainder insufficient to pay both legacies 258

158. Ademption where stock, specifically bequeathed, does notexist at testator's death 258

159. Ademption pro tanto where stock, specifically bequeathed,exists in part only at testator's death 259

160. Non-ademption of specific bequest of goods described asconnected with certain place, by reason of removal 259

161. When removal of thing bequeathed does not constituteademption 259

162. When thing bequeathed is a valuable to be received by thetestator from third person; and testator himself or hisrepresentative, receives i t 260

163. Change by operation of law of subject of specific bequestbetween date of Will and testator's death 260

164. Change of subject without testator's knowledge. 261

165. Stock specifically bequeathed lent to third party oncondition that it be replaced 261

166. Stock specifically bequeathed sold but replaced, andbelonging to testator at his death 261

CHAPTER XVII

OF THE PAYMENT OF LIABILITIES IN RESPECTOF THE SUBJECT OF A BEQUEST

167. Non-liability of executor to exonerate specific legatees 261

168. Completion of testators title to things bequeathed to be atthe cost of his estate. . . — . » 262

169. Exoneration of legatee's immovable property for which land-revenue of rent payable periodically 262

XXVI The Indian Succession Act, 1925

Sections Pages

170. Exoneration of specific legatee's stock in joint-stockcompany...........................................................................................262

CHAPTER XVIIIOF BEQUESTS OF THINGS DESCRIBED IN

GENERAL TERMS

171. Bequests of things described in general terms 263

CHAPTER XIXOF BEQUEST OF THE INTEREST OR

PRODUCE OF A FUND

172. Bequest of interest of produce of a fund............... ...»—•• 263CHAPTER XX

OF BEQUESTS OF ANNUITIES

173. Annuity created by Will payable for life only unless contraryintention appears by Will ^

174. Period of vesting where Will directs that annuity beprovided out of proceeds of property, or out of propertygenerally, or where money bequeathed to be invested inpurchase of annuity.................. 266

175. Abatement of annuity ^

176. Where gift of annuity and residuary gift, whole annuity tobe first saüsfied #

CHAPTER XXIOF LEGACIES TO CREDITORS AND PORTIONERS

177. Creditor prima facie entitied to legacy as well as debt ^

178. Child prima facie entitied to legacy as well as portion. ...........•••»•• 2*

179. No ademption by subsequent provision for legatee. ..........»..•»»•" **CHAPTER XXIIOF ELECTION

180. Circumstances in which dection takes place....................»».——— ^1. Doctrine of election. —^2. Applicability of doctrine. - 2 *

2703. The Court cannot compel to cbaose a remedy.4. Time of election. - 2 7 °

181. Devolution of interest relinquished by owner. ......... ^

182. Testator's belief as to his ownership immaterial . . . ...—•—•••2

Contents XXVII

Sections Pages

183. Bequest for man's benefit how regarded for purpose ofelection 271

184. Person deriving benefit indirectly not put to election. 271

185. Person taking in individual capacity under Will may inother character elect to take in opposition 271

186. Exception to provisions of last six sections 272

187. When acceptance of benefit given by Will constitutes electionto take under Will 272

188. Circumstances in which knowledge or waiver is presumed orinferred. 273

189. When testator's representatives may call upon legatee toelect................................................................................................. 273

190. Postponement of election in case of disability 273CHAPTER XXIII

OF GIFTS IN CONTEMPLATION OF DEATH191. Property transferable by gift made in contemplation of

death 274PART VII

PROTECTION OF PROPERTY OF DECEASED192. Person claiming right by succession to property of deceased

may apply for relief against wrongful possession 2751. Applicability of Part VII. ...275

2. Summary enquiry. ...276

3. Conditions for invoking Section 192. ...276

(i) When should be invoked? ...277

4. Who can apply? ...277

5. Section 192 and The Madras Civil Courts Act, Section 29. ...2786. Sections 192, 195 and The Bengal Wills and Intestacy

Regulation Act. ...278

7. Remedy against order of District Judge. ...278

193. Inquiry made by Judge. 278

194. Procedure 279

195. Appointment of curator pending determination ofproceedings 279

196. Powers conferrable on curator..................................... 280

XXVIII The Indian Succession Act, 1925

Sections Pages197. Prohibition of exercise of certain powers by curators 280

198. Curator to give security and may receive remuneration 281

199. Report from Collector where estate includes revenue-payingland 281

200. Institution and defence of suits 281

201. Al lowances to apparent owners pending custody by curator........ 282

202. Accounts to be filed by curator 282

203. Inspection of accounts and right of interested party to keepduplicate. 282

204. Bar to appointment of second curator for s o m e property 282

205. Limitation of time for application for curator 283

206. Bar to enforcement of part against public sett lement or legaldirections by deceased 2$

207. Court of W a r d s to be m a d e curator in case of minors havingproperty subject to its jurisdict ion ^

208. Saving of right to bring suit ^

209. Effect of decision of summary proceeding ^

210. Appointment of public curators ™PART VIII

REPRESENTATIVE TITLE TO PROPERTY OFDECEASED ON SUCCESSION

211. Character and property of executor or administrator assuch ^

28'1. Scope of the section.

It2. P r o p e r t y n o t m e n t i o n e d in W i l l .

28'3. Legal position of executor and administrator.

28'4 . Contracting power.5. Administration suit.

2$(i) power of executor.TÉ

6. 'All property1. - *7. Power regarding business of deceased.8. Joint family property.9. Relinquishment of executorship. " .10. Wil l by Mohammedan of more than l/3rd of his property. •'11. T ime of vesting.

Contents XXIX

Sections Pages12. Distinction between executor and administrator. ...290

13. Power exercised by one amongst several executors. ...290

14. Section 211 and Civil Procedure Code, Order XXII, Rule 10. ...291

212. Right to intestate's property 291

1. Scope and applicability. ...291

2. Tiüe acquired after execution of Will. ...292

3. Letters of administration to Karta of family. ...292

4. Time of vesting in administrator. ...292

213. Right as executor or legatee when established 292

1. Object and scope. ...293

2. Applicability. ...295

(i) Time of applicability of provision. ...295

(ii) Will by Christian. ...296

(iii) In any Court of justice. ...297

(iv) Territorial prohibition. ...297

(v) Will executed by Indian Christian. .. .298(vi) Hindu convert to Christianity. ...298

(vii) Jaipur Succession Act, 1943 and Section 213. ...298

(viii) Bar not applicable on third party to Will. ...299

3. Court of competent jurisdiction. ...2994. Filing of suit prior to obtaining probate. ...3005. Substitution proceedings. ...3016. Execution proceedings. ...3027. Writ petition under Article 226 of the Constitution. ...3028. UseofunprobatedWill. ...302

(i) Probate when necessary? ...302(ii) Evidentiary value of unprobated Will. ...302

9. Injunction in probate proceedings. ...304(i) Interim relief in suit by executor without probate. ...305

10. State amendment during pendency of Second appeal. ...30511. Probate by Mohammedan and Christian. ... 305

(i) Suit based on Mohammedan Will. ...30512. Consent decree of Civil Court is not a substitute of probate. ...305

13. Section 213 and Administrators General Act, 1913, Section 29. ...306

14. Conditional decree. ...306

15. Probate of Will executed outside India. ... 306

16. Where nature of document is doubtful. ...307

17. Limitation. ...307

XXX The Indian Succession Act, 1925

Sections

214. Proof of representative titie a condition precedent torecovery through the Courts of debts from debtors of

deceased persons....... 307

1. Object and Scope. -308

2. Applicability to Hindus. -310

3. Escheat cases. -310

4. Claiming through deceased. "310

5. Suit without probate. -311

6. Decree without probate. -311

7. Certificate given by Tehsildar. -312

8. Section 214 and The Hindu Succession Act, Section 8. -313

9. Decree for payment of debt. - 3 "

(i) Meaning of'debf. - 3 1 3

(ii) Legal representative of purchaser of property sold inexecution of decree need no succession certificate. -313

(iii) Mortgage suit. •••*'

(iv) Necessity of probate by L.R. of mortgagee. - 3 1 4

(v) Redemption suit. - 3

(vi) Compensation cases. •••'"

(vii) Insurance cases. -3

(viii) Decree for possession. - 3

(ix) Suit for accounts. - 3 1 6

(x) Recovery of rent. - 3 1 6

(xi) Recovery on the basis of pronote. - 3

(xii) Money in Bank—Insistence of Bank to produceSuccession Certificate. - 3

(xiü) Family pension. -3

(xiv) Arbitration agreement. •••'•(xv) Decree for costs. - 3 : j .

(xvi) Decree for maintenance. - 3

(xvü) Necessity of Succession Certificate for assignees of L.R.of decree-holder.

(xviii) Where some of joint decree- holders survive.(xix) Continuation of execution proceedings.

(a) Bar not applicable.

(b) Bar applicable.

(c) Execution of decree by widow of decree-holder.10. Substitution proceedings.

(i) Section 214 read with Order XXII, Rules 3 of C.P.C.—Continuance of suit for recovery of debt.

11. Where tiüe devolves under specific statute.

Contents XXXI

Sections Pages12. Suit for dower money against heirs of deceased husband. ...32413. Suit filed by receiver. ...32414. Debt of joint family. ...32415. So entitied. ...325

(i) Probate—Holder of the letter of administration need notbe heir of deceased. ...325

215. Effect on certificate of subsequent probate or letters ofadministration 326

216. Grantee of probate or administration alone to sue, etc., untilsamerevoked 327

1. Nature of Section. ...327

2. Single heir not debarred from filing administration suit. ...328

PART-IX

PROBATE, LETTERS OF ADMINISTRATION ANDADMINISTRATION

OF ASSETS OF DECEASED

217. Application of Part 328

1. Limitation Act not applicable. ...328

2. Court Fee. ...328

3. Proving of Will in injunction suit. ...329CHAPTER I

OF GRANT OF PROBATE AND LETTERS OF ADMINISTRATION

218. To whom administration may be granted, where deceased isa Hindu, Mohammedan, Buddhist, Sikh, Jaina or exemptedperson 329

1. Person entitied for administration. ...330

2. Rival claims for administration. ...330

3. Joint administration. ...330

4. Application for entire estate or Will. ...330

5. Ancillary relief. •••330

6. Property excluded by Will. ...331

7. Extent of jurisdiction of Court ...331

8. Nature of power of Court. —332

9. Conclusive proof. —332

10. Belated application. ...332

11. Abatement of appeal against one of the respondents. ... 332

12. Creditor. .333

13. Court-fee. -333

XXXTJ The Indian Succession Act, 1925

Sections Paga

219. Where deceased is not a Hindu, Mohammedan, BuddhistSikh, Jaina orexempted person 333

1. Hindu relative of Christian deceased. ...334

2. "Adultery". -335

3. Joint administration. ...335

4. Proof required. -335

220. Effect of letters of administration »•»•• 335

221. Acts not validated by administration 335

222. Probate only to appointed executor 335

1. Object. - 3 3 6

2. Appointment by implication. •••3363. Executor of an executor. -3384. Distinction between executor and trustee. -3385. Distinction between administrator and executor. -3 38

6. Jurisdiction of Probate Court. -33*7. Effect of agreement by parties. -3w8. Consideration for grant of probate. •••3*9. Caveat. . - 3 4 1

10. Caveatable interest. - ^11. Limitation and effect of delay. - ^12. Suit for injunction cannot be converted into proceedings for

probate. - ^13. Probate by Foreign Court. - ^14. Sections 222 and 230. - 3 4 2

15. Death of sole executor during the pendency. -3^3

16. Renouncement of Will. - ^

223. Persons to whom probate cannot be granted 3431. Probate to guardian of minor. •••*"2. Probate to Society. - ^

224. Grant of probate to several executors simultaneously or atdifferent times...... 344

1. Nature of Section. - 3 ^2. Executors may act jointly. - ^3. Death of applicant during pendency of appeal. --^

225. Separate probate of codicil discovered after grant of probate....»*1. Powers of District Judge.2. Entire assets to be disclosed in affidavit. ••

Contents XXXIII

Sections Pages

226. Accrual of representa.tion to surviving executor 346

227. Effect of probate 346

1. Retrospectivity of Probate. ...346

2. Rights of testator cannot be adjudicated in probateproceedings. ...347

3. Effect of probate. ...347

228. Administration, with copy annexed, of authenticated copy ofWill proved abroad 348

1. Will proved abroad. ...348

2. Copyright of book published in foreign. ...350

3. Discretion of Court. ...350

4. Grant to attorney. ...351

5. "Proved", ...351

229. Grant of adminif tration where executor has not renounced 351

1, Scope. ...351

2, Powersof residuary legatee vis-a-vis Executor. ...352

3, Time of renunciation. ...352

230. Form and effect of renunciation of executorship 352

1. Renunciation must be in express terms. ...3522. Renunciation by one of several executors. ...352

3. Renunciation once made is flnal. ...352

231. Procedure where executor renounces or fails to accept withintime Umited 353

232. Grant of administration to universal or residuary legatees 353

1. Residuary legatee. ...354

2. No executor named in Ihe Will. ...354

3. Application must be for wbole estate. ...355

4. Power of Probate Court regarding construction of Will. ...355

5. Death of legatee before executor's assem. ...355

6. Applicability of Order XXII, Rules 3, 4 of C.P.C. ...356

7. Court-fee on Letters of Administration. ...356

233. Right to administration of representative of a deceased

residuary legatee....... . .............................356

1. Scope. -356

2. Diffcrence between legal representative and representative. ...356

3. Difference between executor and administrator. ...356

XXXIV The Indian Succession Act, 1925

Sections Pages234. Grant of administration where no executor, nor residuary

legatee, nor representative of such legatee 3571. Objection by heirs of legatee. -3572. Court cannot refuse the grant when the Will is established. ...357

235. Citation before grant of administration to legatee other thanuniversal or residuary 357

236. To whom administration may not be granted 3581. Letters of administration to society. -3582. Letters of administration to corporate bodies. -3583. Petition for letters of administration on behalf of minor legatee. ...358

236-A. Laying of rules before State Legislature 359CHAPTER II

OF LIMITED GRANTSGrants Limited in Duration

231. Probate of copy or draft of lost Will 3591. Scope. - 3 5 9

2. Last Will—What is to be proved?. -3 6 0

3. Lurden of proving revocation. —360238. Probate of contents of lost or destroyed Will 360

239. Probate of copy where original exists , 360240. Administration until Will produced 360

Grants for the use and benefits ofothers having right

241. Administration, with Will annexed, to attorney of absentexecutor 360

1. Conditions for applicability. -36'2. Sections 241 and 228. - 3 6 1

3. Sections 241 and 242. - 3 6 1

4. Nature of power of administrator under Section 241. -3*"242. Administration, with Will annexed to attorney of absent

person who, if present would be entitied to admlnister 362243. Administration to attorney of absent person entitied to

administer in case of intestacy. ..„........„„„..„„...„.,„.„... 362244. Administration, during minority of sole executor or

residuary legatee...........,,,, , ,„......,„..„„ 362245. Administration, during minority of several executors or

residuary legatees , 363

246. Administration, for use and benefit of lunatic or minor 363

247. Administration pendente lite,.. 363

Contents XXXV

Sections Pages1. Appointment of Administrator pendente lite. ... 3642. When receiver has been appointed in partition suit? ...3653. Bar on appointment of Administrator when executor is named

in Will. ...3654. Discretion of Court. ...3655. Partial grant. ...3666. Dispute as to appointment of executor. ...3667. Injunction during pendency of probate petition. ...3668. Powers of Administrator. ...3669. Administration of property when decree granting probate is

appealed. ...366Grants for special purposes

248. Probate limited to purpose specified in Will 367249. Administration, with Will annexed, limited to particular

purpose 367250. Administration, limited to property in which person has

beneficia! interest 367251. Administration limited to suit 367252. Administration limited to purpose of becoming party to suit

to be brought against administrator. 368253. Administration limited to collection and preservation of

deceased's property 368254. Appointment as administrator, of person other than one

who, in ordinary circumstances, would be entitied toadministration 368

1. Grant of administration to stranger. ...3692. Competency and willingness of executor. ...3693. Grant of administration for part of estate. .. .369

Grants vith exception255. Probate or administration, with Will annexed, subject to

exception............... 370256. Administration with exception 370

Grants of the rest257. Probate or administration of rest 370

Grants of effects unadministered258. Grants of effects unadministered 371259. Rules as to grants of effects unadministered 371

260. Administration when limited grant expired and still somepart of estate unadministered 371

XXXVI The Indian Succession Act, 1925

Sections Pfl«es

CHAPTER III

ALTERATION AND REVOCATION OF GRANTS

261. What errors may be rectified by Court 372

262. Procedure where codicil discovered after grant of

administration with Will annexed 372

263. Revocation or annulment for just cause. 372

1. Procedure for annulment of probate. -313

vn2. Duty of Court. "

T743. Who can apply for revocation of probate ?

4. Supplementary grant of probate.

5. Just cause.378

6. Absence of citation.7. Locus standi to claim citation.

3808. Service on guardian. "9. Defective citation. •<l3°:

10. Proceedings defective in substance. •"11. Revocation on ground of forgery. "'12. Useless and inoperative. "' ,13. Misappropriation by executor, "'14. Unregistered Will in Bihar, under local law. *"3

15. "New grounds". -"fjj16. Svstyto administration bond. "'17. Representative suit and res-judicata. '" ^18. Necessary party. "' ^19. RightsofnomineeagainstL.Rs. '"\.20. Substitution of L.Rs. "*7,21. Premature application. " ,22. Lünitation and delay. "' ^23. When application is dismissed for default, "' ^24. Applicability to foreign Will, - 3

CHAPTER IVOF THE PRACTICE IN GRANTING AND REVOKINGPROPATES AND LETTERS OF ADMINISTRATION

264. jurisdiction of District Judge in granting and revokingh t s , etc.,.M. — , „ , . , . „ . . .

,.M.1. Jurisdiction for grant of Probate. - .2. "District Judge". - 3 *3. Where bis power has been eonferred on Civil Judge, - 3

4. Local jurisdiction. - 3

5. Bombay Civil Courts Act, 1869, Section 28-A. - 3 8 8

Contents XXXVII

Sections Pages

265. Power to appoint Delegate of District Judge to deal withnon-con ten tious case............................................................... 388

1. Powers of District delegate. ...390

2. Jurisdiction of District Judge where sub-judge has beenempowered by notification. .. .390

266. District Judges' powers as to grant of probate and letters ofadministration 391

1. Scope of inquiry. ...391

2. Withdrawal of probate petitions. ...392

3. Himachal Pradesh (Courts) Order, 1948, Para 25. ...392

267. District Judge may order person to produce testamentary

268. Proceedings of District Judge's Court in relation to probateand administration.. .. . . .... ... 393

1. Applicability of C.P.C. ...393

2. Parties to proceedings. ...395

3. Effect of withdrawal of application at Appellate Stage. ...395

269. When and how District Judge to interfere for protection ofproperty 396

1. Purpose of probate proceedings. ...396

2. Order of injunction. ...396

3. Order regarding property outside jurisdiction. ...397

270. When probate or administration may be granted by DistrictJudge 397

1. Local Jurisdiction. ...397

2. When proceedings are pending before two Courts of concurrentjurisdiction. ...398

3. Scope of enquiry. ...398

4. Satisfaction of Court. ... 398

5. Injunction regarding proceedings in foreign. ...399

6. Conditions imposed while issuing the Succession Certificate. ...399

7. Fmality of probate. ...399

271. Disposal of application made to Judge of District in whichdeceased had no fïxed abode. 399

1. Local Jurisdiction. ...399

2. High Courts discretion. ...400

3. Rigbts and liability of bolder of Succession Certificate. ...400

XXXVIJI The Indian Succession Act, 1925

Sections Pages

272. Probate and letters of administration may be granted by

Delegate. 400

273. Conclusiveness of probate or letters of administration 400

1. Applicability. ...401

2. Conclusiveness of probate. .402

3. Contents of Certificate. -403

4. Time when probate becomes effective. ...403

5. Compromise. -403

6. Determination of jurisdiction. -4M

7. Succession Certificate does not finally decide the rights ofparties. -404

8. Question of validity of marriage. -4W

274. Transmission to High Courts of certificate of grants underproviso to Section 273............................................................... 404

275. Conclusiveness of application for probate or administrationif properly made and verified............................................—.....«• 405

276. Peütion for probate. ^1. Basic requirements for grant. - 4 *

2. Court-fee. - 4 0 7

(i) Foreign assets. -40°

3. Limitation. - 4 0 8

4. Permanent place of abode. •••

-5. Applicability of res-judicata and res-subjudice.

6. Probate for Part of Estate. - 4 1 0

7. Citation to near relatives. - 4

8. Caveat. - 4 1 1

9. Uncontested probate petitions. - 4

10. Security. - 4 1 2

A.YL11. Scope of enquiry by Court. -

12. Legal Representatives of Legatee . -

13. Testamentary succession without probate. -

14. Proof of Wil l and satisfaction of Court. - 4 l 4

15. Interim injunction. ••277. In what cases translation of Will to be annexed to petition—

Verifïcation of translation by person other than Courtt r a n s l a t o r . . . — - 4 1 5........ .

Contents XXXIX

Sections Pages

278. Petition for letters of administration 416

1. Order passed under Section 278 is not a decree. ...417

2. Objection. ...417

3. Scope of enquiry. ...417

4. Court-fee. ...418

5. Administration of part of property. ...418

6. Need for administration. ...418

279. Addition to statement in petition, etc. for probate or lettersof administration in certain cases 419

1. Object of Section 279. ...419

2. Limitation for Letters of Administration. ...419

280. Petition for probate, etc. to be signed and verified 419

281. Verification of petition for probate, by one witness to Will 420

282. Punishment for false averment in petition or declaration 421

283. Powers of District Judge 421

1. Extent of power. .. .422

2. Concealment of material facts. .. .423

3. Citation. -423

4. Special citation. .426

5. Omission to issue citation. -426

6. Delay. -427

7. Proof of Will. -427

(i) Presumption of due execution. ...427

(ii) Burden of proof. —428

(iii) When testator died soon after making the Will. ...429

8. Caveat and objection. —429

9. Proof of debt. -432

10. Claim independent of Will. -432

11. Injunction in probate proceeding. -432

12. Appointment of guardian of minor. -432

13. Decree in terms of agreement. —433

14. Applicability of res-judicata. ...433

284. Caveats against grant of probate or administration 433

1. Scope. - 4 3 4

2. Locus Standi to file a caveat. ...434

3. Principle and object of caveat. —435

XL The Indian Succession Act, 1925

Sections Pagts

4. Caveator producing Will of later date. ...436

5. Finality of Order. ...431

285. After entry of caveat no proceeding taken on petition untilafter notice to Caveator 431

2 8 6 . District Delegate when not to grant probate or letters ofadministration 437

287 . Power to transmit statement to District Judge in doubtfulcases, where no contention. .....................................................•••.>••• 437

288. Procedure where there is contention, or District Delegatethinks probate or letters of administration should be refusedin his Court 438

289. Grant of probate to be under seal of Court................. •»•••• 438

1. Form of Probate. -43!

2. Schedule. -43'3. No determination on title. •••'"

290. Grant of letters of administration to be under seal of Court........ 43?

291. Administration bond.....................................................—.....—«••• ^

1. Security. -440

2. Applicability in probate. •• ^3. Relieving of surity. -

292. Assignment of administration bond ....••••—••••• ̂

1. Nature of proceedings. •••2. Section 292 confers substantive right. -

A/P

3. Application dismissed for default. -293. Time for grant of probate and administration ^294. Filing of original Wills of which probate or letters of

administration with Will annexed granted ^

295. Procedure in contentious cases. .........................................••••••••••••1. Scope. -441

2. What is to be proved? -444

3. Proving by affidavit.4. Question of validity of marriage in testamentary suit.5. Conversion of application into suit.6. Rival applications for probate in different Courts.7. Order binding on whom?8. Order n o t a decree. ^

Contents XLI

Sections Pages

9. Court-fee. ,447

10. Certified copy of Will. ...448

11. Appeal, when case is dismissed for default. ...448

296. Surrender of revoked probate or letters of administration 449

297. Payment to executor or administrator before probate oradministration revoked 449

298. Power to refuse letters of administration 449

299. Appeals from orders of District Judge 4501. Scope. ...450

2. Grant of probate to co-executor who disputes the Will. .. .451

3. 'Locus Standi' to file appeal. ...451

4. Interlocutory orders. ...452

5. Injunction orders. ...452

6. Appeal against order dismissing the review/recall application. ...452

7. New plea. ...453

8. Appeal from order of Subordinate Judge. ...453

9. No revision. ...453

10. Order of probate or letters of administration is nota decree. ...453

11. Letters patent appeal. ...454

300. Concurrent jurisdiction of High Court 454

1. Jurisdiction of High Court and District Court is concurrent. .. .454

2. Notification of jurisdiction. ...455

3. Court has inherent power to recall or review. ...455

301. Removal of executor or administrator and provision forsuccessor. 456

1. Application for removal. ...456

2. Removal of executor or administrator. - -456

3. Distinction between executor and administrator. -457

4. Distinction between executor and trustee. -458

5. When administration is complete. -458

6. Order not appealable. 4 5 9

302. Directions to executor or administrator 459

1. Scope. -459

2. Probate Court cannot construe a Will. • • -461

3. Application 'or appointment of person not named as executor. ...461

XLII The Indian Succession Act, 1925

Sections Pages

CHAPTER V

OF EXECUTORS OF THEIR OWN WRONG

303. Executor of his own wrong 462304. Liability of executor of his own wrong 462

1. Executor de son ton. ...4632. Payment in due course of administration. ...4633. Section 304 and Section 312. -463

CHAPTER VI

OF THE POWERS OF AN EXECUTOR OR ADMINISTRATOR

305. In respect of causes of action surviving deceased and debtsdue at death 464

306. Demands and rights of action of or against deceased surviveto and against executor or administrator. 464

1. Survival of rights of action. -4642. Personal injury. -4653. Appeal will continue. -4&84. Suit for accounts. -4695. Grant of permit under Motor Vehicles Act. - 4 $6. Proceedings under Presidency Small Causes Courts Act. -4707. Pre-emption cases. - ^8. Insolvency proceedings. - 4 ^

9. Injunction suit. - ^10. Malicious prosecuüon. -4/1

11. Brcach of Contract. - 4 7 1

12. Accident claim. - 4 7 2

13. Section 306 and CPC, Order XXII, Rules 1 and 3(1). ••473

307. Power of executor or administrator to dispose of property 4 "

1. Powers of executor. • • -47

2. Rights and obligations of transferee from executor. - 4 7

3. Restrictions and conditions. - 4 7

4. Duties of executor. -

5. Executor of Mohammedan Will. - 4 7

6. Act of one of the two executors. -

1. Borrowing by executor. —

308. General powers of administration 4 7 8

309. Commission or agency charges . 4 7 8

Contents XLJII

Sections Pages

310. Purchase by executor or administrator of deceased'sproperty 479

311. Powers of several executors or administrators exercisable byone 479

312. Survival of powers on death of one of several executors oradministrators 480

313. Powers of administrator of effects unadministered 480

314. Powers of administrator during minority 480

315. Powers of married executrix or administratrix 480CHAPTER VII

OF THE DUTIES OF AN EXECUTOR ORADMINISTRATOR

316. As to deceased's funeral 480

317. Inventory and account 4801. Duties of executor. ...4812. Discretion of Court. ...4823. Submission of false accounts. ...4824. Filing of account does not bar suit for accounts. ...4825. When accounts and inventory not filed. ...4826. Section 317 is applicable only when administration is still

conünuing. ...482

318. Inventory to include property in any part of India in certaincases 483

319. As to property of, and debts owing to, deceased. 483

320. Expenses to be paid before all debts 483

321. Expenses to be paid next after such expenses 484322. Wages for certain services to be next paid, and then other

debts 484323. Save as aforesaid, all debts to be paid equally and rateably 484

1. Nature of Section 323. -4852. Rateable distribution. -485

324. Application of movable property to payment of debts wheredomicile not in India. 485

325. Debts to be paid before legacies 486

1. Liability of legatee to pay debts of testator. .. .4862. Insolvent estate. -486

XLJV The Indian Succcssion Act, 1925

Sections Pages

326. Executor or administrator not bound to pay legacies without

indemnity 486

327. Abatement of general legacies... . . 487

328. Non-abatement of specific legacy when assets sufficient topay debts 487

329. Right under demonstrative legacy when assets sufficient topay debts and necessary expenses 487

330. Rateable abatement of specific legacies 487

331. Legacies treated as general for purpose of abatement.................. 487

CHAPTER VIII

OF ASSENT TO A LEGACY BY EXECUTOR OR ADMINISTRATOR

332. Assent necessary to complete legatee's title ^

1. Assent to legacy by executor. -

2. When legatee can sue without consent of executor. - 4 5 '

333. Effect of executor's assent to specific legacy *"

1. Not applicable to general bequests. -2. Presumption of assent. - w

334. Conditional assent ^

335. Assent of executor to his own legacy

336. Effect of executor's assent 49°

337. Executor when to deliver legacies 49°

CHAPTER IX

OF THE PAYMENT AND APPOINTMENT OF ANNUITIES338. Commencement of annuity when no time fixed by Will 491

339. When annuity, to be paid quarterly or monthly, first fallsdue. 491

340. Dates of successive payments when first payment directed tobe made within a given time or on day certain; death ofannuitant before date of payment 491

CHAPTERX

OF THE INVESTMENT OF FUNDS TO PROVIDE FOR LEGACIES

341. Investment of sum bequeathed, where legacy, not specific,given for life. 492

342. Investment of general legacy to be paid at future time 492

Contents XLV

Sections Pages

343. Procedure when no fund charged with, or appropriated to,annuity 492

344. Transfer to residuary legatee of contingent bequest 492

345. Investment of residue bequeathed for life, without directionto invest in particular securities 492

346. Investment of residue bequeathed for life, with direction toinvest in specified securities 493

347. Time and manner of conversion and investment 493

348. Procedure where minor entitied to immediate payment orpossession of bequest and no direction to pay to person onhisbehalf. 493

CHAPTER XI

OF THE PRODUCE AND INTEREST OF LEGACIES

349. Legatee's tiüe to produce of specific legacy 494

1. Deposit in Court where legatee refuses to accept the amountpayable to him under Will. ...494

2. Contingent legacy. ...494

350. Residuary legatee's title to produce of residuary fund 495

351. Interest when no time fixed for payment of general legacy 495

352. Interest when time fixed 496

353. Rate of interest 496

354. No interest on arrears of annuity within first year aftertestator's death 496

355. Interest on sum to be invested to produce annuity 496CHAPTER XII

OF THE REFUNDING OF LEGACIES

356. Refund of legacy paid under Court's orders 496

357. No refund if paid voluntarily 497

358. Refund when legacy has become due on performance ofcondition within further time allowed under Section 137 497

359. When each legatee compellable to refund in proportion 497

360. Distribution of assets 497

1. Distribution. - 4 9 7

2. Notice. - 4 9 8

XI.VI The Indian Succession Act, 1925

Sections Pago

361. Creditor may call upon legatee to refund 491

362. When legatee not satisfied or compelled to refund underSection 361, cannot oblige one paid in full to refund..........—.....498

363. When unsatisfïed legatee m u s t first proceed againstexecutor, if sol ven t 498

364. Limit to refunding of one legatee to another 498

365. Refunding to be without interest . . . . . . . . . . . .— 4"

366. Residue after usual payments to be paid to residuary legatee.......499

367. Transfer of assets from India to executor or administrator incountry of domicile for distribution 4 "

CHAPTER XIII

OF THE LIABILITY OF AN EXECUTOR OR ADMINISTRATORF O R DEVASTATION

368. Liability of executor or administrator for devastation ™

369. Liability of executor or administrator for neglect to get anypart of property.........

P A R T X

SUCCESSION CERTIFICATE

370. Restriction on grant of certificates under this Part. . . . . . . . .—»-""" ^501

1. Scope and applicability.2. Necessity for Succession Certificate.3. Debt: -502

S02(i) Meaning o f 'Debf . "

503(ii) Mortgage.

503(iii) Articles in Bank Locker.

503(iv) Provident Fund.

504(v) Gratuity.

504(vi) "Share" and dividend. • \ .

4 . Locus standi. "' .504

5. Application by minor . '"6. VaüdityofWUl. " 5 ^7. Probate before Certificate.8. Rights and obligations of nominee.9. Fonnal defect in application.

371. Court having jurisdiction to grant certificate.

Contents XL VII

Sections Pages

1. Applicability. ...506

2. Ordinary residence. ...507

3. No fixed place of residence ...507

4. Situation of property. ...508

5. Cancellation of certificate. ...508

6. Objection regarding territorial jurisdiction. ...508

7. District Judge. ...508

8. Incharge District Judge. ...508

9. Situs of óebL 508

10. Dutiesofcertificate-holder. ...509

1. Applicability. ...511

2. Inquiry regarding tiüe. ...511

3. Validity of marriage. -512

4. Jurisdiction on contested application. -513

5. Conversion of application into tiüe suit -513

6. Necessary parties. —513

7. Rival claims. -514

8. Certificate cannot begrantedjointly. -514

9. Succession Certificate to acknowledged kinsman. ...514

10. Application by wife of void marriage. •••514

11. Illegitimate son not entiüed. •••515

12. Application by minor. —515

13. Certificate to idol. -515

14. "Near relatives". -515

15. Applicability of Resjudicata. -51616. Amendment in application. ...51617. Conditions are mandatory. ...51618. Security from widow. —516

19. Court-fee. - 5 1 6

20. Debt. - 5 1 7

21. Noticetodebtor. - 5 1 8

22. No substitution. - 5 1 8

23. Deceased converted to Islam. 518

24. Examination of applicant. —518

25. Delay. - 5 1 8

26. Succession Certificate in favour of objector. •••51827. Family Court cannot adjudicate. - 5 1 9

28. No second appeal. - 5 1 9

XLVH1 The Indian Succession Act, 1925

Sections ?W

373. Procedure on application. ................................................".."..«.»..5151. Local jurisdiction. —520

2 . Inquiry by Court. -®

3. Extent of powers of Probate Judge. -521

4. Locus standi. •• ̂ '

5. Presumption about marriage. '^

6. Heirs and nominee. •••J

7. Conclusiveness of probate. •'

8. Res-judicata. 3i

9. Security.«23

10. No grant for part of property.11. Joint certificate.

52312. Probate is not evidence of death.13. ApplicabilityofSectionl41ofCPC.

£11374. Contents of certificate. 3

5241. Objection regarding contents.2. Execution of Succession Certificate.

524375. Requisition of security from grantee of certificate. ..„......•.•••""""•

1. Security from minor.525

2. Security from widow.526

3. Appeal against refusal to ünpose security.526

376. Extension of certificate. ..........................................•.....•"••""•""••"'526

377. Forms of certificate and extended certificate.......378. Amendment of certificate in respect of powers as to

securities. .......•..•..................................................•..•••••"•••••••"•""""527

379. Mode of collecting Court-fees on certificates.M...........—«»—••—•""521

1. Court-fee. ' ,527

2. Non deposit of sum equal to Court-fee.52"

3. Applicability of Order XXXIII of C.P.C.4. Refund of deposit.

380. Local extent of certificate. 5

529381. Effect of certificate....~........................^.....................«...«"""—"' „

5291. Conclusive proof of rights.2. Suit on the basis of certificate. '" „

5303. Applicability to Provident Fund.

Contents XLIX

Sections Pages

382. Effect of certificate granted or extended by Indianrepresentative in foreign State and in certain other cases 531

383. Revocation of the certificate 5311. Application for revocation. ...532

2. Partial revocation. ...532

384. Appeal 533

1. Appeal against order of furnishing security. ...5332. No appeal against order refusing to revoke the certificate. ...5343. Appellate Court. ...5354. Applicability of Section 141 of C.P.C. ...5355. Option of separate suit. ...5356. Powers of Appellate Court. ...535

385. Effect on certificate of previous certificate, probates orletters of administration 536

386. Validation of certain payments made in good faith to holderof invalid certificate. 536

387. Effect of decisions under this Act, and liability of holder ofcertificate thereunder 536

1. Applicability of principle of Res-judicata. ...5372. Challenging the order of Succession Certificate by regular suit. ...5373. Question of legality of marriage. -538

388. Investiture of inferior Courts with jurisdiction of DistrictCourt for purposes of this Act...... . . • 536

1. Appeal from order of District delegate. -5392. Power of subordinate judge to hear appeal. -5413. Jurisdiction of Munsifs in Kamataka under Notification issued

under Succession Certificate Act, 1889. -5414. Section 388 and Madras Civil Courts Act 1873, Section 29(1). ...541

389. Surrender of superseded and invalid certificates 542

390. Provisions with respect to certificate under BombayRegulation No. VIII of 1827 542

f ART XI

MISCELLAENOUS

391. Saving. 542

392. [Repeals] Repealed by the Repealing Act, 1927 (12 of 1927),Section 2 and Schedule 543

L The Indian Succession Act, 1925

Schedules J»ag«S C H E D U L E I SM

S C H E D U L E I I 545

S C H E D U L E I I I

S C H E D U L E IV

S C H E D U L E V 547

S C H E D U L E VI 547

S C H E D U L E VII ... 547

S C H E D U L E VIII .. 547

S C H E D U L E IX [ R e p e a l e d ] 5 *5