VOID BEQUESTS - Assignment

Family Law-I
VOID BEQUESTS
INTRODUCTION
Bequests are the transfers of wealth that occur upon a donor's death and that include transfers by the means
of a will or a trust. Bequests can take several forms such as:
• Specific bequest - A certain amount of cash, securities, or property.
• General bequest - Property that is similar to all other items distributed, usually cash.
• Percentage bequest - A stated percentage of the donor's estate.
• Residual bequest - All or a portion of what remains of the estate after specific and general bequests
are distributed. 1
Besides a straight bequest, you can also set up a trust that will benefit charitable organizations during or
after your lifetime. Another way to leave money is to name one or more nonprofit organizations as
beneficiaries of an insurance policy or as the recipient of your retirement fund. The Indian Succession Act,
1925 explains bequest upon impossible conditions under Sections 112 to 118.
1 M. S. RAMA RAO -MSL Law Books
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LEGAL ASPECTS AND SECTIONS INVOLVED
SECTION 112
Bequest to person by particular description, who is not in existence at testator's death.-Where a
bequest is made to a person by a particular description, and there is no person in existence at the testator's
death who answers the description, the bequest is void.
Exception.--If property is bequeathed to a person described as standing in a particular degree of kindred to a
specified individual, but his possession of it is deferred until a time later than the death of the testator, by
reason of a prior bequest or otherwise; and if a person answering the description is alive at the death of the
testator, or comes into existence between that event and such later time, the property shall, at such later time,
go to that person, or, if he is dead, to his representatives. 2
Illustrations
(i) A bequeaths 1,000 rupees to the eldest son of B. At the death of the testator, B has no son. The bequest is
void.
2 scribd.com/doc/215054839/Void-Bequests-Family-Law-India
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(ii) A bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C. At the death of the
testator, C had no son. Afterwards, during the life of B, a son is born to C. Upon B's death the legacy goes to
C's son.
(iii) A bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C. At the death of the
testator, C had no son. Afterwards, during the life of B, a son, named D, is born to C. D dies, then B dies.
The legacy goes to the representative of D.
(iv) A bequeaths his estate of Green Acre to B for life, and at his decease, to the eldest son of C. Up to the
death of B, C has had no son. The bequest to C's eldest son is void.
(v) A bequeaths 1,000 rupees to the eldest son of C, to be paid to him after the death of B. At the death of
The testator C has no son, but a son is afterwards born to him during the life of B and is alive at B's death. C's
son is entitled to the 1,000 rupees.
SECTION 113
Bequest to person not in existence at testator's death subject to prior bequest.- Where a bequest is made
to a person not in existence at the time of the testator's death, subject to a prior bequest contained in the will,
the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the
thing bequeathed. 3
Illustrations
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(i) Property is bequeathed to A for his life, and after his death to his eldest son for life, and after the death of
the latter to his eldest son. At the time of the testator's death, A has no son. Here the bequest to A's eldest
son is a bequest to a person not in existence at the testator's death. It is not bequest of the whole interest that
remains to the testator. The bequest to A's eldest son for his life is void.
(ii) A fund is bequeathed to A for his life, and after his death to his daughters. A survives the testator. A has
daughters some of whom were not in existence at the testator's death. The bequest to A's daughters
comprises the whole interest that remains to the testator in the thing bequeathed. The bequest to A's
daughters are valid.
(iii) A fund is bequeathed to A for his life, and after his death to his daughters, with a direction that, if any of
them marries under the age of eighteen, her portion shall be settled so that it may belong to herself for life
and may be divisible among her children after her death. A has no daughters living at the time of the
testator's death, but has daughters born afterwards who survive him.
Here the direction for a settlement has the effect in the case of each daughter who marries under eighteen of
substituting for the absolute bequest to her a bequest to her merely for her life; that is to say, a bequest to a
person not in existence at the time of the testator's death of something which is less than the whole interest
that remains to the testator in the thing bequeathed. The direction to settle the fund is void. 4
(iv) A bequeaths a sum of money to B for life, and directs that upon the death of B the fund shall be settled
upon his daughters, so that the portion of each daughter may belong to herself for life, and may be divided
among her children after her death. B has no daughter living at the time of the testator's death. In this case
the only bequest to the daughters of B is contained in the direction to settle the fund, and this direction
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amounts to a bequest to persons not yet born, of a life-interest in the fund, that is to say, of something which
is less than the whole interest that remains to the testator in the thing bequeathed. The direction to settle the
fund upon the daughters of B is void.
SECTION 114
Rule against perpetuity.- No bequest is valid whereby the vesting of the thing bequeathed may be delayed
beyond the life-time of one or more persons living at the testator's death and the minority of some person
who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing
bequeathed is to belong. 5
Illustrations
(i) A fund is bequeathed to A for his life and after his death to B for his life; and after B's death to such of
the sons of B as shall first attain the age of 25. A and B survive the testator. Here the son of B who shall first
attain the age of 25 may be a son born after the death of the testator; such son may not attain 25 until more
than 18 years have elapsed from the death of the longer liver of A and B; and the vesting of the fund may
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thus be delayed beyond the lifetime of A and B and the minority of the sons of B. The bequest after B's
death is void.
(ii) A fund is bequeathed to A for his life, and after his death to B for his life, and after B's death to such of
B's sons as shall first attain the age of 25. B dies in the lifetime of the testator, leaving one or more sons. In
this case the sons of B are persons living at the time of the testator's decease, and the time when either of
them will attain 25 necessarily falls within his own lifetime. The bequest is valid.
(iii) A fund is bequeathed to A for his life, and after his death to B for his life, with a direction that after B's
death it shall be divided amongst such of B's children as shall attain the age of 18, but that, if no child of B
shall attain that age, the fund shall go to C. Here the time for the division of the fund must arrive at the latest
at the expiration of 18 years from the death of B, a person living at the testator's decease. All the bequests
are valid.6
(iv) A fund is bequeathed to trustees for the benefit of the testator's daughters, with a direction that, if any of
them marry under age, her share of the fund shall be settled so as to devolve after her death upon such of her
children as shall attain the age of 18. Any daughter of the testator to whom the direction applies must be in
existence at his decease, and any portion of the fund which may eventually be settled as directed must vest
not later than 18 years from the death of the daughters whose share it was. All these provisions are valid.
SECTION 115
Bequest to a class some of whom may come under rules in sections 113 and 114.- If a bequest is made to
a class of persons with regard to some of whom it is inoperative by reason of the provisions of section 113 or
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section 114, such bequest shall be void in regard to those persons only, and not in regard to the whole class.
Illustrations
(i) A fund is bequeathed to A for life, and after his death to all his children who shall attain the age of 25. A
survives the testator, and has some children living at the testator's death. Each child of A's living at the testator's
death must attain the age of 25 (if at all) within the limits allowed for a bequest. But A may have children after
the testator's decease, some of whom may not attain the age of 25 until more than 18 years have elapsed after
the decease of A. The bequest to A's children, therefor, is inoperative as to any child born after the testator's
death; and in regard to those who do not attain the age of 25 within 18 years after A's death, but is operative in
regard to the other children of A. 7
(ii) A fund is bequeathed to A for his life, and after his death to B, C, D and all other children of A who shall
attain the age of 25. B, C, D are children of A living at the testator's decease. In all other respects the case is
the same as that supposed in Illustration (i). Although the mention of B, C and D does not prevent the
bequest from being regarded as a bequest to a class, it is not wholly void. It is operative as regards any of the
children B, C or D, who attains the age of 25 within 18 years after A's death. 8
SECTION 116
Bequest to take effect on failure of prior bequest.- Where by reason of any of the rules contained in
sections 113 and 114, any bequest in favor of a person or of a class of persons is void in regard to such
person or the whole of such class, any bequest contained in the same will and intended to take effect after or
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upon failure of such prior bequest is also void.
Illustrations
(i) A fund is bequeathed to A for his life, and after his death to such of his sons as shall first attain the age of
25, for his life, and after the decease of such son to B. A and B survive the testator. The bequest to B is
intended to take effect after the bequest to such of the sons of A as shall first attain the age of 25, which
bequest is void under section 114. The bequest to B is void.
(ii) A fund is bequeathed to A for his life, and after his death to such of his sons as shall first attain the age
of 25, and, if no son of A shall attain that age, to B. A and B survive the testator. The bequest to B is
intended to take effect upon failure of the bequest to such of A's sons as shall first attain the age of 25, which
bequest is void under section 114. The bequest to B is void.9
SECTION 117
Effect of direction for accumulation.- (1) Where the terms of a will direct that the income arising from any
property shall be accumulated either wholly or in part during any period longer than a period of eighteen
years from the death of the testator, such direction shall, save as hereinafter provided, be void to the extent
to which the period during which the accumulation is directed exceeds the aforesaid period, and at the end of
such period of eighteen years the property and the income thereof shall be disposed of as if the period during
which the accumulation has been directed to be made had elapsed.
(2) This section shall not affect any direction for accumulation for the purpose of--
9 A Comparative Study of the General Provision of Indian Succession Act, 1925 and The Hindu Succession Act of,
1956
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(i) the payment of the debts of the testator or any other person taking any interest under the will, or
(ii) the provision of portions for children or remoter issue of the testator or of any other person taking any
interest under the will, or
(iii) the preservation or maintenance of any property bequeathed; and such direction may be made
accordingly. 10
SECTION 118
Bequest to religious or charitable uses.- No man having a nephew or niece or any nearer relative shall
have power to bequeath any property to religious or charitable uses, except by a will executed not less than
twelve months before his death, and deposited within six months from its execution in some place provided
by law for the safe custody of the wills of living persons:
Illustrations
A having a nephew makes a bequest by a will not executed and deposited as required
(i) For the relief of poor people;
(ii) For the maintenance of sick soldiers;

(iii) For the erection or support of a hospital;
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(iv) For the support of scholars;
(v) For the erection or support of a school;
(vi) For the building and repairs of a bridge;
(vii) For the making of roads;
(viii) For the erection or support of a church;
(ix) For the repairs of a church;
(x) For the benefit of ministers of religion;
(xi) For the formation or support of a public garden11
All these bequests are void.
BEQUEST TO PERSON BY PARTICULAR DESCRIPTION, WHO IS NOT IN

EXISTENCE AT TESTATOR'S DEATH
Section 112 of the act deals with bequests to persons not in existence at the testator’s death and lays down
that such bequest are absolutely void. Where a gift is made to a person by a particular description, this
section requires, not only that they must have been in existence at the testator's death, but must also answer
the description at the testator's death. If on the face of a will, testator or testatrix has omitted certain words
and those words can be collected without reasonable doubt from the context and are necessary to effectuate
that intention, they can be supplied as a matter of construction. Where however the words in the will are
clear and unambiguous, no additional words can be added to cut down their plain meaning.
Bequest void for uncertainty - A Bequest in favor of a son of ‘L’ or’ G’ is void for uncertainty and
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extraneous evidence is not admissible to show which particular son of ‘L’ or’ G’ was intended to be
benefited by the testator. Bequest void for uncertainty is well explained in Nakshetramali Dei v.
Braja Sundar Das [A.I.R. 1933 Pat. 647]. 12
An Unborn persons’ successive live, not inexistence - Successive life interests in favour of heirs of legatee
is void. The creation of succession life estates in favour of Bretons not in existence is not legally
permissible. An Unborn persons’ successive live, not inexistence is well explained in G. Narayanv. R.N.
Rafagpalan [A.I.R. 1987 Mad. 75] 13
Exception - Person answering the description was alive at the death of the life - Estate holder - A
testator by his will appointed his wife and nephew as his trustees and executors and gave all his properties to
the trustees upon certain trusts under which the wife was to enjoy the free use and income of his estate for
life. The will further empowered the wife to dispose of at the time of Tier death one-third share in the whole
estate in favor of any person and in any manner she chose as if that disposition had been made by the
testator himself. As regards the 2/3 estate remaining undisposed at the time of the wife's death, the will
directed that the surviving trustee should divide that 2/3 estate equally among all the brothers and sisters of
the testator alive when the will was made and that, should any of these predecease his wife, then the share
which the deceased would have received if alive should be given to child or children of the deceased. One of
the sisters of the testator who had survived the testator died unmarried and without issue during the lifetime
of the testators widow. On the death of the widow, the period of distribution of the 2/3 of the residuary estate
given to the testator's brothers and sisters having arrived, a question arose whether the estate of the deceased
sister was entitled to share in the distribution. Held, that the deceased sister's share of the residue vested in
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her on the death of the testator subject to divestiture only in the event of her predeceasing the testator's
widow leaving child or children and such event not having occurred, her representative was entitled to her
share. Phillip Graham v. Philip Graham [A.I.R. 1939 P.C. 78] and Browne v. Moody [1936 A.C. 63 :
105 L.J.P.C] and Smitherv Willoek [1804 Ves. Jur. 233 : 32 E.R. 592] explains the concept very well. In
Debi Prosad v. Mst Krishna Kunwar, A testator devised his properties to his sons without power of
alienation and on their death to their sons and on their death to other persons.14 Held. that the bequest in so far
as it created life-estates in favor of his sons and in so far as it created life-estates on the death of those sons
in favor of those son's sons was good.
In Mathuranath v. Lakhi Narain, A Hindu made a will according to which after leaving certain
properties to his daughter he made provision for the performance of his Shradh and dedicated certain
properties to religious uses. He appointed his wife his executrix and Shebait and gave her power to appoint
her successor. The widow of the testator left a will by which she appointed a great-nephew of her deceased
husband, born after his death as shebait The heirs of the testator brought a suit for the construction of this
will. Judge Sanderson in his judgment said that it is applicable to hereditary office and endowment as well
as to other immovable property. In this case however in his judgment having regard to its terms, this will did
not create any hereditary office or endowment. Consequently in his judgment, the fact that the first
defendant was not alive at the time of the death of the testator does not make the appointment of the first
defendant as Shebait invalid. 15
Residuary bequest - It is well settled in England that a residuary gift of personal property comprises a
legacy of personal property which has failed by lapse or by being void ab inito. A case in reference is Smith
v. Smith
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BEQUEST TO PERSON NOT IN EXISTENCE AT TESTATOR'S DEATH SUBJECT TO PRIOR
BEQUEST
Where a bequest is made to a person not in existence at the time of the testator's death, subject to a prior
bequest contained in the will, the later bequest shall be void, unless it comprises the whole of the remaining
interest of the testator in the thing bequeathed. By this section, a gift to an unborn person subject to a prior
bequest is void, unless it be an absolute gift of the whole remaining interest of the testator
A Successive life estates - Creation of successive life estates in favor of persons not in existence is not
permissible in law. [G.Narayanan v. R.N. Rqjagopalan, A.I.R. 1987 Mad. 75]
In Putlibai v. Sorabji, the testator by clause (9) of his will disposed of certain houses along with certain
furniture to his executors upon trust to permit his daughter during her life and until death or marriage,
whichever shall first happen, and also all his sons and also their respective families during as well as after
the respective lifetime of such respective sons, including the widow of any of his male lineal descendants, to
occupy the said houses and make use of the said furniture free of rent during their respective lifetime and
until the youngest of his grandsons living at the death of the last survivors of his sons shall attain the age of
18 years. By clause (10) provision was made for the maintenance and upkeep of all such of his children and
their respective families entitled to the right of residue as aforsaid, until the expiration of ten years from his
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death or until the death of his last surving son, whichever should first happen.16 Clause (11) of the will
directed that on the expiration of 10 years or after the death of the last surviving son, whichever should first
happen, the properties (subject to the rights of residence already referred to) were to be divided into five
shares of which one was to go to each son, but for life only. If he died, the persons presumptively entitled to
the corpus under subsequent provisions were to have the income till the death of the last survivor of the five
sons. Then by clause (12) each son might by deed or will appoint in favour of his own sons or their lineal
descendants, and on failure of such issue in favour of his widow and daughters or their lineal descendants.
By clause (13), in default of the exercise of this power, the share of each son, if he had left a son or issue of
such son living at the death of the last survivor of the testators sons, was to be held for the sons of such son
and the issue of his predeceased sons per stirpes and if the son of the testator left no such son or issue then
for his widow and daughter and the issue of predeceased daughters. Viscount Haldone in delivering the
judgment observed: "Their Lordships concur in the view expressed in the judgments of the Court of Appeal
that these limitations contravene the provisions of Section 100. The bequests to the sons, daughters, widows
and issue of the testator's sons thus made do not in all possible instances dispose of the subject-matter to
which they apply, and so fail to comprise the whole of the remaining interest of the testator. It is obvious
that he has reserved contingent rights which might well prove to be of value. The unborn beneficiaries do
not take the whole interest indisposed of by reason of the title of his own sons being only for their lives. But
the difficulties are not exhausted by these considerations. 17
Clause 15 gives over the share in income and corpus alike of any beneficiary who alienates, in any of a
number of ways, and in that event creates a discretionary trust, which may extend, so far as the income is
concerned, only to a part of it, for the benefit according to the selection by the Trustees of some others, of a
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class of beneficiaries somewhat wider than that of those who are to take under the clauses just referred to.
The sixteenth clause also puts an end to the title of every beneficiary who ceases to profess, or marries any
one not professing Zoroastrian faith, and gives the interest over in favor of those who take on the death of
such beneficiary. In the face of this clause it cannot be contended successfully that Section 100 is complied
with. For the whole of the remaining interest need not pass out of the hands of the Trustee if there is
forfeiture of the income of the sons of the testator". So the deferred bequest must comprise the whole of the
remaining interest of the testator in the thing bequeathed.
English law - The principle of this section is quite in conformity with the rule of English law. A case is
Vide Hay v. Earl of Coventry.

More than one prior bequest is permissible - In Damodar v. Aruna, the testator who had no male issue
but only daughter, K of ten years of age said : "The aforesaid K born to me by my wife Paru, becomes
entitled to all my properties and the proceeds thereof He then went on to say that he would manage the
property for the remainder of his life, that he and his wife during their lifetime would enjoy the property, and
that after they were dead their property "should be enjoyed by the daughter K and that the issues that might
be born to her," Held, that after the life-interest of the widow K obtained the property absolutely and that
the Will could not be interpreted as making a joint gift to K and such of her children as might be alive when
she came to enjoy the property. The bequest after the intervention of the life-interest as set out in this
exception vests in each member of the class as and when he or she comes into being and this is so although
he or she may die before the period of distribution in which case the representatives of such as have died
since the death of the testator would be entitled along with those alive at the period of distribution. 18
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RULE AGAINST PERPETUITY
No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the lifetime of one
or more persons living at the testator's death and the minority of some person who shall be in existence at
the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong.
Bequest void of Remoteness - In England, there is no rule of law more absolute than that all property,
whatever be its nature, must be alienable within a life in being and 21 years after. The rule is of recent
growth and its terms were definitely laid down in the case of Cadell v. Palmer But under this section, the
additional period allowed after lives in being is not only dependent upon minority, but is allowed only for
the benefit of the infant who takes.
State of things at testator's death - In deciding the question of remoteness the state of things at the death of
the testator is only to be considered and not their state at the date of the will is to be considered. As in the
case Vanderplank v. King.
Lifetime of one or more persons - Here the life must be of a human being. But in England the rule can be
extended to the lives of animals as in case Re Dean [41 Ch. D. 552]. The contingency must happen within
the compass of a life or lives in being.
Successive life-estates - In a Madras case life estate was conferred on the legatee (which was valid).
Successive life estates were further created in favor of heirs of the legatee were held to be not valid. 19
Alienation and partition made by the legatee was not finding on the heirs (sons) of the legatee after his
death. Sons of the legatee would succeed to the properties after lifetime of life-estate succession life interest
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cannot be created in favor of a person not in existence of G.N. Arayanan v. R.B. Rqjagopan [A.I.R. 1987].
Where Enjoyment is postponed - A gift is not void under this section where it vests within the prescribed
limits but its enjoyment is merely postponed. A gift to A for like and after his death to his children to be
divided share and share alike, when and as they should respectively attain the age of 24 years, etc. is a valid
gift. Here the child living at the death of the life-estate holder takes the gift as in Farmer v. Francis.
Rule against perpetuities and charitable gifts - A provision in will for the creation of trust and spending of
the income in scholarship for the children of three named families offends the rule against perpetuities and
is therefore void. Powell v. Compton. But a gift in trust for poor relations is a valid charitable gift.
Testamentary devises can be made in perpetuity by a Hindu testator for charitable and religious purposes. A
gift to family idol is valid.
Gift to an Idol not in existence - A Hindu deity is, in the contemplation of the Hindu, always in existence;
the establishment and consideration of a visible image is merely a manifestation. Hence the principle of
Hindu law which invalidates a gift other than to sentiment being capable of accepting it does not apply to
bequest to trustees for the establishment of an image and a worship of a Hindu deity after the testators death.
Under the English law is well settled that a gift for the advancement of religion in general terms, as for
instance, a gift to be employed 'in the service of our Lord and Master/ or 'for the worship of God' are valid. 20
In support of this proposition reference may be made to the decision in ‘In re Darling (1896) 1 Ch. 50’, and
Attorney-General v. Pearson. A bequest in favor of an unnamed deity is void for uncertainty.
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Charge for Worship - Properties can be conferred to a legatee subject to a charge of worship Gopal Lai Sett
v. Purna Chundra.
Doctrine of Cypres - In construing a will bequeathing properties to a charity the primary rule is to ascertain
whether the object aimed at by the testator could be carried out without making a new will for him.
Although there may be vagueness in the selection of the places or in the allocation of the funds, so long as it
is ascertainable that the testator had a particular object in view and that he intended the funds left by him
should be appropriated to that object, courts are bound to see that the persons appointed by the testator do
not misappropriate the funds. If the court can ascertain that there was a general charitable intention, the fact
that the particular object for which the charity was intended did not exist or that the fund intended for that
charity could not exhaust the whole income will not be any reason for holding that the bequest failed either
wholly or in part. The doctrine of Cypres should receive as extended an application as possible so as to give
effect to the true intent and aim of the donor. His lapses, his ignorance, and his failure to understand the
situations should not fetter the courts so long as the purposes specified by him are not violated.
If a testator has manifested a general intention to give to charity, whether in general terms, or to charities of
a defined character or quality, the failure of the particular mode in which charitable intention is to be
effectuated shall not imperil the charitable gift. If the substantial intention is charitable the court will
substitute some other mode of carrying it into effect.21
If on the proper construction of the will the mode of
application is such an essential part of the gift that you cannot distinguish any general purpose of charity but
are obliged to say that the prescribed mode of doing the charitable act is the only one the testator intended or
at all contemplated, than the court cannot, if that mode fails, apply the money. Shaw v. Wills
21 Legalservicesindia.com
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Mohammedan Law - With the exception of a Waqf or a charitable gift, Mohammedan law does not favor
perpetuity. Where an estate was created which postponed the postponing the legacy beyond the minority of
the legatee was inoperative. Huseinbhoy v. Ahmedbhoy.
BEQUEST TO A CLASS SOME OF WHOM MAY COME UNDER RULES IN SECTIONS 113
AND 114
If a bequest Is made to a class of persons with regard to some of whom It Is Inoperative by reason of the
provisions of section 113 or section 114, such bequest shall be void In regard to those persons only, and not
in regard to the whole class.
Acceleration of Subsequent Bequest.—This section is applicable only in cases where a prior bequest fails by
reason of any of the provisions of sections 113, 114 & 115.
Bequest to take effect on failure of prior bequest - Where by reason of any rules contained in section 113
and 114, any bequest in favor of a person or of a class of persons is void in regard to such person or of a
class of persons is void in regard to such persons or the whole of such class, any bequest contained in the
same will and intended to take effect after or upon failure of such prior bequest is also void .22
Effect of direction for accumulation - Where the terms of a will direct that the income arising from any
property shall be accumulated either wholly or in part during any period longer than a period of eighteen
years from the death of the testator, such direction shall, save as hereinafter provided, be void to the extent
to which the period during which the accumulation is directed exceeds the aforesaid period, and at the end of
such period of eighteen years the property and the income thereof shall be disposed of as if the period during
which the accumulation has been directed to be made, had elapsed.
22 Legalservicesindia.com
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This section shall not affect any direction/or accumulation/or the purpose of
(i) the payment of the debts of the testator or any other person taking any interest under the will or
(ii) the provision of portions for children or remoter issues of the testator or of any other person taking any in-
terest under the will or
(iii) the preservation or maintenance of any property bequeathed; and such direction may be made accord-
ingly.
Similar Law - This amended section corresponds to Sections 17 and 18 of the Transfer of Property Act,
which were substituted by Act XX of 1929.
Reason for the Amendment of 1929 - This section before its amendment and Section 17 of the T.P. Act
before its amendment allowed accumulations for a period of any year only in certain cases. In England, the
Thellusson Act allowed a much longer period. Moreover, in certain cases, the restriction against
accumulation was not applicable at all. Thus that Act allowed accumulations for the payment of debts and
for providing funds for children.23
Accumulations are also allowed in English law for maintaining property in good repair, (1891) 2 Ch. 13. By
the Accumulation Act, 1892, and by the Property Act, 1922, some more exceptions were added to the rule
enacted in the Thelluson Act. The whole law is now consolidated in Sections 164-166 of the Property Act,
1925 (15 Geo. 5, c. 20). "In their report the second Indian Law .
Commission remarked: As to the rule prohibiting accumulation we all should prefer the more liberal
enactments of the Thellusson Act (39 & 40 Geo. 3, c. 98), which allow an accumulation for 21 years and do
not affect provisions for payment of debts or for raising portions. But as the rule embodied in the Indian
Succession Act (1865), Section 104, has now been in force for 14 years, Mr. Stokes and Mr. West do not
20
Family Law-I
pass for its alteration, “Sir Charles Turner was, however, of opinion that the above exemptions were
frequently required by the circumstances of large zamindari properties. "It is, however, difficult to adopt the
English law contained in the Property Act, 1925, in its entirety. Section 164 prescribes four periods during
which accumulation can validly by directed, viz.,
(a) the life of the grantor or settler ;
(b) a term of 21 years from the death of the grantor, settler or testator
(c) the duration of the minority or respective minorities only of any person or persons living or en ventre sa
mere at the death of the grantor, settler or testator
(d) the duration of the minority or respective minorities only of any person or persons who under the
limitations of the instrument directing the accumulation would, for the time being, if of full age, be entitled
to the income directed to be accumulated. 24
"Rules regarding accumulation are closely connected with the rule against perpetuities. (Cheshire on
Modern Real Property, p. 482; Fearne on Contingent Remainders, p. 537.). The English rule of perpetuities
has a historical origin and has not been wholly adopted in India. According to the English law, the perpetuity
period is the life of any person of the survivor of any number of persons, who is or who are alive or en
ventra sa mere at the moment when the deed or the will which creates the interest begins to operate, plus a
period of 21 years from the time when such designated person dies [Cadell v. Palmer, (1833) 1 C.L. & F.
372]. The rules against perpetuities in India so far as transfer inter vivos is concerned are contained in
Sections 13 and 14. Under Section 14 no transfer of property can operate to create an interest which is to
take effect after the lifetime of one or more persons living at the date of such transfer and the minority of
21
Family Law-I
some persons who shall be in existence at the expiration of that period, and to whom, if he attains full age,
the interest created is to belong. The periods in Section 164 of the Property Act, 1825, cannot be
incorporated in its entirety in the Transfer of Property Act without affecting the provisions of Sections 13
and 14. We, therefore, consider it desirable to permit accumulations during the following periods only
(1) the life of the transferor ; or
(2) a period of 18 years thereafter.
"This would avoid the difficulty of construction. At the same time we think it desirable to accept certain
well-
recognized exceptions in law such as those relating to provisions for the payment of debts, raising portions
for children and the repairs of the property transferred. Section 18, therefore, should be amended
accordingly" - Report of the Select Committee. 25
Origin - Formerly the rule that fixed the period for which the vesting of property might be suspended,
regulated also the power of deferring its enjoyment; it being then permitted to a settler or testator to create
an accumulating trust absorbing the entire income during the full period for which the vesting might be
protracted, and whether it was or was not who protracted. And no inconvenience appears to have been felt
in allowing so wide a range of accumulation, few persons having availed themselves of the permission to a
mischievous extent, until Mr. Thelluson made the extraordinary and well-known disposition of his immense
property, by virtue of which every child or more remote descendant born or rather procreated in his lifetime
were excluded from enjoyment, for the purpose of swelling to a princely magnitude, the fortune of some
remote and unascertained scions of the stock. The necessity then becomes apparent, of some preventing, by
legislative enactment the repetition of a scheme of disposition fraught with so much mischief and hardship.
22
Family Law-I
This led to the Stat. 39 & 40, Geo. 3, 6, 38 (d) known as the Thelluson Act". Jarman on Wills,This section is
based on that Act. [Thelluson v. Woodford, 4 Ves. 227; 11 Ves. 112.]
Accumulate - The use of the word "accumulate" is not necessary to come within the rule. Neither express
direction to accumulate is necessary. Morgan v. Morgan, 4 De G. & S. 164; Tench v. Chases, 6 6 De. M &
G. 453; Macdon v. Boyce, 2 2 Ku. 276. A direction to "invest" or "capitalise" income, or to form a reserve
or guarantee fund, or the like, maybe sufficient. Mathews v. Keble, L.R. 3 Ch. 691; Re Dawson, 13 R. 633 :
Re Mason, L.R. (1891) 3 Ch. 467; Re Cox, (1900) W.N. 89. Indirect direction to accumulate comes within
the section. [Saw v. Rhodes, 1 My. & Cr. 135; Euans v. Hellier, 5 CI. & F. 114.] 26
Death of the testator - The period of eighteen years is to be calculated exclusive of the day of the testator's
death.
Such direction shall be void - It is well settled that a direction for accumulation exceeding the statutory
period, is good portent. The accumulation would be good for one year from the death of the testator though
void for the subsequent period. Langdonv. Simson. In the above case Sir William Grant M.R., decided that
the trust was good for the period allowed by the Statute, ie., twenty-one years. He further observed that if the
accumulation should continue twenty-four years, that would be good for twenty-one years.
BEQUEST TO TAKE EFFECT ON FAILURE OF PRIOR BEQUEST
Where by reason of any of the rules contained in sections 113 and 114, any bequest in favour of a person or
of a class of persons is void in regard to such person or the whole of such class, any bequest contained in the
23
Family Law-I
same will and intended to take effect after or upon failure of such prior bequest is also void.
It is settled that any limitation depending or expectant upon a prior limitation which is void for
remoteness is
invalid. The reason appears to be that the persons entitled under the subsequent limitation are not intended to
take unless and until the prior limitation exhausted : and as the prior limitation which is void for remoteness
can never come into operation, much less be exhausted, it is impossible to give effect to the intentions of the
settler in favour of the beneficiaries under the subsequent limitation." Where a gift over is void for
remoteness, all limitations ulterior to and dependent upon such invalid gift are also void. 27
Proctor v. Bishop
of Bath and Wales. In Palmer v. Holford, 4 Russ. 403, a testator directed his trustees to transfer his funds to
the children of his son C.T.H., who should be living at the expiration of twenty-eight years from the
testator's decease except and eldest only son ; and in case no child should be then living over, Sir J. Leach,
M.R., said : "The expressed intention of the testator is that all the children of his son C.T.H, other than an
eldest son, should take, who were living at the expiration of twenty-eight years, and that no person should
take before the period. If C.T.H. had such children born to him at any time within seven years from the
testator's death, then the vesting of the interests of such children who were unborn at the death of the testator
would have been suspended for more than twenty-one years, and the gift therefore, is too remote and void ;
and the gifts over not being to take effect after the same period, which is too remote, are necessarily void
also." So the real reason of the gifts over not taking effect is not based upon the intention of the testator but
it is void for remoteness. As such the gift over would not take effect even if C.T.H. had no children. Miles
24
Family Law-I
v.
Harford. But there is a distinction where the gift over is to arise on an alternative event, one branch of
which
is within, and the other is not within, the prescribed limits. Thus: A bequeaths B a house in case C die
without leaving sons, or in case such sons die without issue. C dies without leaving sons. The first
contingency having happened, the bequest to B is valid without reference to the other contingency. The rule
in this section is substantially in accord with English law by which, as a general rule, limitations following
upon limitations, void for perpetuity, are themselves void, whether within the line of perpetuity or not.28
Where a bequest was made to great grandsons on their attaining majority, the testator not having any at his
death and in default of them in daughter's sons it was held that the latter was dependent upon and not
alternative to the first gift and therefore void under this section. Brojonath v. Ananda
EFFECT OF DIRECTION FOR ACCUMULATION
Where the terms of a will direct that the income arising from any property shall be accumulated either
wholly or in part during any period longer than a period of eighteen years from the death of the testator, such
direction shall, save as hereinafter provided, be void to the extent to which the period during which the
accumulation is directed exceeds the aforesaid period, and at the end of such period of eighteen years the
property and the income thereof shall be disposed of as if the period during which the accumulation has been
directed to be made, had elapsed.
Reason for the Amendment of 1929 - This section before its amendment and Section 17 of the T.P. Act
before its amendment allowed accumulations for a period of any year only in certain cases. In England, the
25
Family Law-I
Thellusson Act allowed a much longer period. Moreover, in certain cases, the restriction against
accumulation was not applicable at all. Thus that Act allowed accumulations for the payment of debts and
for providing funds for children. Accumulations are also allowed in English law for maintaining property in
good repair, (1891) 2 Ch. 13. By the Accumulation Act, 1892, and by the Property Act, 1922, some more
exceptions were added to the rule enacted in the Thelluson Act. The whole law is now consolidated in
Sections 164-166 of the Property Act, 1925. 29
The English rule of perpetuities has a historical origin and has not been wholly adopted in India. According
to the English law, the perpetuity period is the life of any person of the survivor of any number of persons,
who is or who are alive or en ventra sa mere at the moment when the deed or the will which creates the
interest begins to operate, plus a period of 21 years from the time when such designated person dies [Cadell
v. Palmer, (1833) 1 C.L. & F. 372]. The rules against perpetuities in India so far as transfer inter vivos is
concerned are contained in Sections 13 and 14. Under Section 14 no transfer of property can operate to
create an interest which is to take effect after the lifetime of one or more persons living at the date of such
transfer and the minority of some persons who shall be in existence at the expiration of that period, and to
whom, if he attains full age, the interest created is to belong. The periods in Section 164 of the Property Act,
1825, cannot be incorporated in its entirety in the Transfer of Property Act without affecting the provisions
of Sections 13 and 14. We, therefore, consider it desirable to permit accumulations during the following
periods only:
(1) the life of the transferor ; or
(2) a period of 18 years thereafter.
26
Family Law-I
"This would avoid the difficulty of construction. At the same time we think it desirable to accept certain
well-
recognised exceptions in law such as those relating to provisions for the payment of debts, raising portions
for children and the repairs of the property transferred. Section 18, therefore, should be amended
accordingly" 30
Such direction shall be void, etc - It is well settled that a direction for accumulation exceeding the statutory
period, is good protanto. The accumulation would be good for one year from the death of the testator though
void for the subsequent period. (Langdonv. Simson, 12 Ves. 295). In the above case Sir William Grant
M.R., decided that the trust was good for the period allowed by the Statute, ie., twenty-one years. He further
observed that if the accumulation should continue twenty-four years, that would be good for twenty-one
years.
In Oddie v. Brown , the testator directed his trustees to accumulate the interest until the principal together
with accumulation of interest should amount to "£3,000 or thereabouts" and then to place out the same at
interest, and pay the interest equally amount certain specified legatees named in the will in equal shares
during their lives and the life of the survivor, etc. In the above case Lord Chancellor, Lord Chelmsford said :
"The trust for accumulation is good, to the extent of twenty-one years from the death of the testator.
Debts whether include future debts - Debts mentioned in this clause include not only debts due at the
testator's death, but also future debts accruing within the period mentioned in the section. Varlo v. Faden
Sub-section 2 (i) - Payment of debts - Section 164(2) of the Law of Property of the Accumulations Act,
27
Family Law-I
1800, also provides that the said section does not extend to any provision for the payment of the debts of the
testator or any other person. So in this respect the Indian law is the same as the English law. So it is clear
that a direction for accumulation for payment of debts of the testator does not contravene the rule, against
perpetuities, and is therefore good, though its duration be unlimited. 31
Subsection (2) (ii) - The second exception which does not fall within the rule against accumulation is as
regards "the provision of portion for portion for children or remoter issue of the testator of any person taking
any interest under the will." In this respect the rule as laid down in Section 2 of Thelluson Act is the same.
Section 2 provides "that nothing in this Act contained shall extend to any provision for payment of debts to
any grantor, settler, or devisor, or other person or persons or to any provision for raising portions for any
child or children of any grantor, settler, or devisor, or any child or children of any person taking any interest
under any such conveyance, settlement, or devise, or to any direction touching the produce of timber or
wood, upon any lands or tenements ; but that all such provisions and directions shall and may be made and
given as if this Act had not been passed." This rule of the Thelluson Act was re-enacted by Section 164(2) of
the Law of Property Act, 1925. All that is required under this clause is that the children or remoter issue
must be children or remoter issue either of the testator or of a person taking an interest under the will, and as
such if the accumulation is for the portion of a class of children, some of whom take nothing under the will,
the exception does not apply.
The Indian Legislature has omitted the words "raising portions" and for these words substituted the words
"of portions"; as there is no difficulty as was pointed out in Garrington v. Liddel. 32
Sub-section (2) (iii) - Accumulations for preservation of any property - This clause is added in this
28
Family Law-I
section to get over the difficulty to be raised in cases like Bassil v. Lister, 9 Hare 177, and commented upon
by Jarman at pp. 393-394 of his Law of Wills, 6th edn. In that case there was a direction in the will to apply
a sufficient part of the income of the testator's property in keeping up certain policies which he had effected
on the lives of his children in their names, and which in case of their marriage he directed to be settled on his
wives and children. In that case it was decided by Turner, V C, that it was not a trust for accumulation
within the Statute, and was, therefore, valid beyond the period of twenty-one years from his death. In that
case Turner, V C, said : "It was said in argument that the company were recipients of the income for the
purpose of accumulation; that what was done was the same thing as if the rents were paid to an individual, to
accumulate in his hands, and to be paid over at the death of the life insured; and the case was presented to
the court in many similar points of view; but I do not see how the payment of the premiums to the Insurance
Company out of the income is an accumulation of the income. The premiums, when paid to the Insurance
Company, become part of their general funds, subject to all their expenses; and although it is true that the
funds in the hands of the companies do generally produce accumulations, it is impossible to say what
accumulations arise from any particular premium." But according to Mr. Jarman the sum is no less the result
of accumulation because it is of certain amount.
Application of the Section to Will of Hindu - Before the amendment this section was not applicable to
Hindus, Buddhists, etc the substituted section now applies to the wills of the Hindus as by Section 14 of Act
XXI of 1929 and in Schedule III, Section 117 is inserted. 33
29
Family Law-I
BEQUEST TO RELIGIOUS OR CHARITABLE USES
No man having a nephew or niece or any nearer relative shall have power to bequeath any property to
religious or charitable uses, except by a will executed not less than twelve months before his death, and
deposited within six months from its execution in some place provided by law for the safe custody of the
wills of living persons. Section 118 is not applicable to Hindus, Mohammadans, Buddhists, Sikhs or Jains as
per Section 58 of the Act. By Act 51 of 1991, a proviso was added to exclude Parsis also. Section 118 of the
Act is based on English Mortmain Act. That Act has now been repealed and replaced by the Mortmain and
Charitable Uses Act, 1888. Under that Act, every assurance of any hereditaments of any tenure, for any
charitable uses, is void aimless made with the requirement of the Act, and prohibited the gift by Will to a
charity of any interests in land. But by an amending Act of 1891, land maybe assured by will to or for the
benefit of any charitable use; but in such case it is required to be sold, as a rule, within one year from the
testator's death. The object of the above provision and the intention of the legislature in enacting this section
was to prevent deathbed bequests to charitable truths by persons having near relatives, and the section must
be construed in a sense which is in harmony with that intention and so as to give real meaning to each part of
the section, if that can be done without doing violence to the plain language thereof. The section plainly
means that to the extent to which the bequest is for religious or charitable uses, the application of this section
is attracted despite the fact that the bequest is only a part of the property or some interest in such property.34
30
Family Law-I
As already observed the section has no application in the case of Hindus and such a bequest made by a
Hindu for charitable and religious purposes is not governed by this Section, who are the near relations for
the purpose of Section 118 is to be determined according the Table of Consanguinity, vide Section 28,
Schedule 1. The term any nearer relative includes father mother, son, daughter, grandfather, grandmother,
grandson, granddaughter, brother or sister. The word relative' means legitimate relative and has no
application to any relationship by marriage. It includes adopted son also. So a Christian testator having a
nephew or niece or nearer relations must execute the Will at least 12 months before his death, otherwise the
bequest for religious or charitable use would be void. It must also be deposited according to the provisions
of this section, within six months of its execution in some place provided by law for the safe custody of wills
of living persons.
It was contended that Section 118 owes its origin to the statute of Mortmain and since the latter statue
is no more in force, there is no justification in retaining the impugned provision in the statute book.
Moreover, after the commencement of the Indian Constitution in 1950, it is contended that a pre-constitution
statute can remain in operation only if it is consistent with the provisions of the constitution. It is pointed out
that a Muhammadan can validly bequeath one third of his his net assets, when there are heirs. There is no
restriction on bequeathing property for relivious or charitable purposes. They only restriction as regards the
legators is that he should be of sound mind and he should not be minor. As regards the legatee it is stated
that if the legatee causes the death of the legator the will becomes void and ineffective. 35
31
Family Law-I
As regards the subject- matter, any property can form the subject of a will, and both corpus and usufructs
can be bequeathed. In the case of Hindus the founding of a temple or a charitable institution is considered as an
act of religious duty and has all the aspects of Dharma. It was further contended that as per Section 118 of the
Indian Succession Act 1925 bequest of property for religious and charitable use fails, if, for any reason, the
testator does not suffer from the misfortune of death within 12 months of execution of the Will or if it is not
deposited in the place provided by law within six months, and that since as per the impugned provision a
testator who lives beyond the statutory period of 12 months is not able to effectuate his wishes in relation to his
property, the impugned provision defeats the object of the will and is harsh, unjust and arbitrary. According to
the petitioners, in order to survive the challenge under Article 14, it must be established that the classification
arising out of the impugned provision is reasonable and that it has a nexus with the object sought to be
achieved, and since in the instant case the classification between bequests for religious and charitable use and
bequests for other purposes is unreasonable and since it has no nexus with the object sought to be achieved, the
impugned provision is his by Article 14 of the Constitution of India.
To stand the test of the Constitutional mandate of equality before law and equal protection of law in the
context of avoiding discrimination, the Act requires an amendment. If the Parliament does not remove the
discrimination, the Courts in exercise of their jurisdiction and to remedy violation of fundamental rights, are
bound to declare the impugned provision as invalid.
It is not merely a procedure but it is substantive law plus procedure. A substantive restriction is
imposed based on uncertain events over which the testator has no control. As pointed out by the Supreme
Court in Re Special Courts Bill, 1978 (AIR 1979 SC 478), whether an enactment providing for special
procedure for the trial of certain offences is or is not discriminatory and violative of Article 14 of the
Constitution of India must be determined in each case and no general rule applicable to ail cases can safely
be laid. Practical assessment “of the operation of the law in the particular circumstances is necessary.36
32
Family Law-I
In the instant case, Section 118 of the Act regarding religious bequests of all testators, viz. of Hindus,
Mohani- madans, Parsis, Jaina, etc. are not subjected to this procedure and the bequests by Chiistians alone is
singled
out. Therefore, held that Section 118 of the Indian Su c c es si on Ac t regarding relegious and charitable
bequests is discriminatory and violative of Article 14 and 15 of the Constitution of India and it is necessary
that all testators who are similarly situated should be subjected to the same procedure. As the law stands
today, a christian cannot make a bequest for religious or charitable purposes without satisfying the
conditions and procedures prescribed by Section 118 of the Act. Such a burden, procedural burden and
substantive law burden is not falling upon Hindu, Muhammadan, Jains or Parsis testators. Articles 25, 26 (c)
and 26 (d) deal with the fundamental rights of freedom of conscience and free profession, practice and
propagation of religion and administering movable and immovable property by any religious denomination.
Such rights can be regulated by Secular Law.
In the above noted circumstances the court concluded as under:
(a) Discriminates against a Christain vis-a-vis non-Christain;
(b) Discriminates against testamentary disposition by a Christian vis-a-vis non-testamentary disposition;
(c) Discriminates against religious and charitable use of property vis-a-vis all other uses including not so
desirable purposes;
(d) Discriminates against a Christian who has a nephew, niece or nearest relative vis-a-vis a Christian who
has no relative at all; and
(e) discriminates against a Christian who dies within 12 months of actuation of the Will, of which he has no
control. 37
33
Family Law-I
Therefore, Section 118 of Indian Succession Act held to be anomalous and anachronistic being violative of
Articles 14, 15, 25 and 26 of the Constitution of India and therefore, struck down as unconstitutional.
[Preman v. Union of India and others, AIR 1999 Ker. 93.]
It is a well settled law that the word 'near relative' means' legitimate relative'. The word has no application to
relationship by marriage. The object of Section 118 of the Act is to prohibit the death bed bequest to
religious or charitable uses by the persons having near relations such as father, mother, son, daughter,
grandson, grandmother, grandfather, grand-daughter, brother, sister, nephew, niece, except under the
conditions imposed by the Section. Therefore, it is clear that Section 118 of the Act refers to persons who
come within the relationship, only the near relatives mentioned above and none other. Under the
circumstances, the first contention of the petitioner that he is either the nephew or the nearer relative has to
be rejected. Similarly, the Executrix and her sister also cannot be treated as the nieces of the deceased. In
other words, they are not the nearer relations than the petitioner himself.
"Any bequest to charity is void under Section 118 unless the conditions laid down therein are complied
with. The bequest may be a direct bequest or contingent bequest. So long as it is a bequest to charity, the
words used in Section 118 are wide enough to make it applicable to bequests of any kind. But before a
bequest to charity can be held to be good under Section 118, the following conditions must be fulfilled38
(1) the testator has nephew or niece or any nearer relative and he is alive at the time of the death of the
testator
(2) the Will must be executed not less than 12 months before the death of the testator; and (3) it must be
deposited within six months from its execution in some place provided by law."
34
Family Law-I
According to Section 118 of the Act if any one of the condition is not satisfied, the Will becomes void. But
that question would arise only if nephew, niece or nearer relatives are alive, and for other reasons, the
petitioner, and the executrix are not nephew, niece or nearer relative. On the other hand they are distant
relatives and they cannot invoke or seek assistance of Section 118 of the Act to question the validity of the
Will. The respondent being a charitable institution was not aware of the relationship of the deceased with
any other person. However, the petitioner stated that there is no other nearer relative than himself alive as
far as the deceased testatrix is concerned. While discussing the relationship of the petitioner and the
executrix with the deceased, it was found that they do not come within the purview of relations referred to in
Section 118 of the Act. Therefore both of them have no locus standi to question the validity of the will on
the ground that the deceased died within 12 months from the date of execution of the said Will and it was
not deposited as provided under law, etc. cannot be made available to the petitioner. Omission to issue cita-
tion to the petitioner cannot be a ground for revocation of Will. 39
Conclusion
If a bequest is made to a class of persons with regard to some of whom it is inoperative by
reasons of the fact that the person is not in existence at the testator's death or to create perpetuity,
such bequest shall be void in regard to those persons only and not in regard to the whole class.
Case Law
Delhi High Court
35
Family Law-I
Rajrani Sehgal vs Parshottam Lal And Ors. on 18 December, 1992
Equivalent citations: 47 (1992) DLT 192, 1993 (25) DRJ 338, 1992 RLR 126
Author: S Duggal
Bench: S Duggal
JUDGMENT Santosh Duggal, J.
(1) The appellant Smt. Rajrani Sehgal is one of the daughters of deceased Shri Godar Mal, respondent
No.1, Dr. Parshottam Lal, being the son. The said Shri Godar Mal died on 14th February, 1980 and shortly
thereafter a petition for grant of probate/letter of administration under the provisions of section 276/ 278 of
the Indian Succession Act, 1925 (for short 'the Act') was filed by respondent No.1 on the basis of a will,
dated 9th September, 1974 alleged to have been executed by his late father, bequeathing all his moveable
and immoveable properties to him. All the daughters of the deceased including the present appellant were
imp leaded as respondents; two of whom, namely appellant Smt. Rajrani and Smt. Shakuntla, respondent
No.5 in the petition filed objections to the grant of probate/ letter of administration in favor Dr. Parshottam
Lal, The other two daughters Smt. Shanti Devi and Savitri Devi and legal heirs of a pre-deceased daughter
named Smt.Bimla Devi did not, however, file any objections. The petition was allowed after rejection of
all the objections by order dated 3rd March, 1986, and it is this order which is subject matter of the present
appeal.40
(2) The appellant contends that the will suffered from a legal infirmity inasmuch as it offended the rule
against perpetuity as contemplated by section 114 of the Act. The objection is elaborated by reference to
the terms of the will, (Ex.P.1) whereby as per appellant's contentions, the testator had created perpetuity in
his family and had tended to limit the absolute enjoyment of the estate for an indefinite period because the
impugned will imposed restrictions on the legatee, namely, his son against alienation, sale or transfer and
thereafter on son's sons, son's sons's sons and so on. It is contended that this is tantamount to creation of
40 indiankanoon.org/doc/1372277/
36
Family Law-I
successive life estates, which was prohibited by law, and was not permissible under the Hindu Law of
Inheritance and thus the entire bequest by this will was void and inoperative, and the learned District Judge
erred in holding the objections in this respect to be not tenable, and that it was a case where bequest in
favor of the son was absolute, with certain restrictions imposed, which being repugnant to the main
purpose of the will, were liable to be ignored.
(3) The appellant has also reiterated other objections taken in her objections filed in the probate
proceedings, namely, as to the execution of the will having not been proved and the will propounded by
respondent No.1 not being a genuine will of the deceased father and not in any case the last one, and that
there were certain suspicious circumstances surrounding the will, which had not been explained by the
propounder,and for that reason also, the order of grant of letter of administration was liable to be set aside.
(4) Another objection set forth is as to the petition itself not having been filed in the manner required by
law inasmuch as the will in original though in existence was not annexed with the petition and no case for
filing a copy of the certified copy of the Registrar's office was made out.
(5) During hearing, Mr.Lonial appearing for the appellant pressed all these contentions. In respect to the
first objection, namely, the will being void and inoperative for reason of offending the rule against
perpetuity, the learned counsel argued that a bare reading of the will Ex. Pi makes manifest the intention of
the testator to restrict the bequest in favor of the son, only to a life estate, expressing a wish that "the said
son shall not sell or mortgage or transfer or pawn the immovable properties during his lifetime". 41
A similar desire was expressed in respect to the grandsons and daughter-in-law or sons or daughters of the
grandsons. He contended that it was a case where the deceased unmistakably intended each one of the heir
in succession to enjoy only life estate and that this was nothing but creation of successive life estates or
creating a perpetuity in the settlors' family and that in view of the clear prohibition against such a bequest
under section 114 of the Act, the will was invalid, because it was a case of disposition without vesting all
the properties bequeathed in the legatee or his heir-in-succession, and that of indefinitely deferring the
absolute right of enjoyment of the estate.
37
Family Law-I
(6) Mr. Lonial placed strong reliance on a judgment of the Judicial Committee reported as Xii Indian
Appeals 103, Sookhmoy Chunder Dass and another v. Srimati Manohurri Dasi, holding that : "WHERE it
clearly appeared that a Hindu testator's intention was that his estate itself should not be disposed of, but to
make a gift simply with reference to the enjoyment of the profits, the object being to create a perpetuity as
regards the estate, and to limit for an indefinite period the enjoyment of the profits of it; by Hindu Law the
whole will was invalid."
(7) I have given my earnest thought to this contention raised on behalf of the appellant because it goes to
the root of the matter and as per appellant's contention invalidates the bequest in its entirety. On a careful
reading of the will, the objection appears to be misconceived, and betrays an attempt at a misreading of the
actual intention of the testator as reflected in the will in dispute.42
(8) It is settled law that in construing a will, the court has to read, and keep in mind the whole of the
document, and then determine as to what was the dominant intention of the testator and give effect to the
same accordingly. It will be expedient to take note of rule of interpretation in respect to construction of
wills, which as held in Air 1932 Madras 489, (Bondada) Manumallaswami and another v. Rinisetti Chinna
Narayanaswami and others is to construe a will in such a manner, so as to give effect as far as possible to.
all the words used by the testator, and the true way to do so would be to form an opinion apart from the
decided cases and then to see whether the decided cases required any modification of that opinion, not to
-begin by considering how far the will in question resembles other wills upon which decisions have been
given.
(9) A similar note of caution was struck by the Supreme Court in , Ramachandra Shenoy and another v.
Mrs. Hilda Brite and others laying down that in the matter of construction of a will, authorities or
precedents are of no help, as each will has to be construed in its own terms, in the setting in which the
clauses occur.
(10) Mr. Makhija appearing for respondent No.1, rightly argued that the foremost task of the court is to
determine the real intention of the testator, and that is to be seen from whole of the context, and once the
38
Family Law-I
court is satisfied that the testator wanted to give his all to the named legatee, son in the present case, then
all subsequent restrictions would be void as being repugnant to the predominant intention of passing the
entire estate to the heir.
(11) At this stage reproduction of the operative part of the will would facilitate in arriving at a proper
conclusion in respect to the intention of the testator. After staling his age and his state of health in general,
the deceased gave details of his entire properties, moveable as well immoveable including the bank
account, insurance policy, locker etc. He then proceeded to state that he had one son and five daughters,
whose names were all given. There is then the recital that all of them are married. He further made his
mind clear by saying that all the daughters were given dowry according to his capacity.43He bad nothing
more to pay them and he also desired that his heirs did not enter into any litigation after his death. and then
provided that: "I wish that after my death my son Dr.Parshotam Lal will be entitled to the whole of my
properties i.e. house No.T-23, Old Moti Nagar and shop No.5571 and 5569, Nai Sarak, Delhi and shop No.
T- 23, Hardhian Singh Road, Karol Bagh, New Delhi and moveable properties from. the banks, insurance
policy and cash and . ornaments from lockers, but he shall have to pay Rs.1,000.00 (Rs. one thousand
only) at the time of the marriage of his sister's daughters and Rs.500.00 at the time of sister's son's
marriage. I also wish that my son Dr. Parshotam Lal shall not sell or mortgage or transfer or pawn the
immovable properties during his lifetime. I also wish that my grandsons or my daughter in law shall not
sell, transfer or mortgage the properties to anybody after the death of Parshotam Lal. I also further wish
that the sons or daughters of my grandsons shall not sell, transfer or mortgage the properties to any body.
My son shall have the right to collect the rent to use the properties for residential/commercials purposes. I
also wish that my son should give Ks-50.00 per month to Smt. Bimla Rani Bhasin after my death. This is
my 1st and last will which is irrevocable."
(12) The recital in the will makes it abundantly clear that the deceased was in no doubt that he had given,
all that was required, to his daughters at the time of their marriages and nothing else remained to be given
to them and that it Was his son whom he described as very obedient, who "will be entitled to whole of my
properties", which properties were described in detail firstly in the preamble, and then in the bequest
portion including the bank account, insurance policy, cash and ornaments from locker. He also made a
provision for some amounts to be given at the time of marriages of the sons and daughters of his
39
Family Law-I
daughters, and made obligatory on his son to whom the properties were being bequeathed, to ensure that a
specified amount was given on each occasion.
(13) By excluding his daughters from inheritance, it is manifest that the testator was very clear in his mind
that he wanted his son to get all the properties owned by him, whether moveable or immoveable, in
whatever form. He unequivocally expressed the desire that except for discharging certain obligations on
specified occasions, the son would be entitled to all his moveable and immoveable properties.44
(14) There is no gainsaying the proposition that in case there are unambiguous dispositive words in the
will, they should be given full effect consistent with the intention of the testator, and in case any restrictive
or qualifying expression is used to circumscribe the enjoyment of the devise so made, then that has to be
ignored as being repugnant to the real intention of the deceased.' (15) This proposition has been laid down
and endorsed in a catena of authorities. In a Division Bench judgment of Andhra Pradesh High Court
reported as Air 1958 Andhra Pradesh Mylavarapu Krishnamurthy and Others, where the words used were
"the property shall pass to S", it was held that this expression was consistent with the creation of an
absolute interest and any subsequent restriction in derogation of devolution of absolute estate are to be
treated as being repugnant to the preceding absolute estate.
(16) Although no two wills can be identical, but the present case is as closely similar to the case before the
Andhra Pradesh High Court, as can be envisaged because here the words used are "entitled to".
(17) The plain dictionary meaning of this term, as contained in the New Webster and Encyclopaedic
Dictionary of English Language, 88th edition at page 292 is, inter alia, "to give an effect, or title to, or to
furnish with a title, right or claim."
(18) When the testator after making his intention clear of not desiring to give anything to the daughters,
said that his son would be entitled to receive all, and then narrated in minute details the particulars of all
his assets, moveable and immoveable; the unmistakable inference is that he intended to confer full title to
the estate to be left by him on his only son. There is another inbuilt indication in the body of the will which
40
Family Law-I
lends support to this interpretation of the will, that the deceased Shri Godar Mal had desired to pass on the
entire estate to his son because there is a recital in the will that whereas the son was very obedient, his
grandsons were not so and were always pestering the testator. In this setting, it could never have been the
intention of the testator to restrict the rights of the son, towards full and natural enjoyment of the estate to
be inherited by him, and binding him down to leave everything for his sons or sons' sons.. It is thus a case
where the restrictions imposed against alienation etc. are to be treated as repugnant to the dominant
intention of the testator, and thus liable to be ignored.
(19) This view is fortified by certain decided cases on which the learned District Judge also placed
reliance. For instance, in the case reported as Air 1929 P.C. 283, Raghunath Prasad Singh arid another v.
Deputy Commissioner, Partabgarh and another, where the words used were that, "the estate shall vest in
P", and he shall be testator's "heir and successor" it was held that these were clear dispositive words,
creating an absolute estate in P, and various clauses that followed these provisions containing restrictions
against alienation had to be treated as an attempt to impose repugnant conditions upon the estate so created
and were therefore void.45
(20) To the same effect is another judgment of the Privy Council reported as , Jagat Singh and others v.
Sangat Singh and others, where the will provided that testator's Widow would be exclusive owner of
certain property and after her death whatever remained would be owned by testator's nephew's sons, but
the Widow and nephew's sons were prohibited from sell ing the immoveable property. It was held that the
widow has to be treated to have been made an absolute owner and the prohibition against selling had to be
disregarded as repugnant to the absolute will to the widow.
(21) In another case, relating to a will by a Parsi, reported as Air 1923 P.C. 122, Putlibai and others v.
Sorabji Naoroji Gamdia and others, where while conferring rights on his progeny, the testator directed
postponement of division of the estate to a specific period or event, it was held that such a direction is to
be regarded as inoperative, the interest to which it attaches, being absolute.
(22) The Orissa High Court in a Division Bench judgment reported as , Bandura Ramamurty v. Koppula
41
Family Law-I
Vajram and others, also propounded the same proposition that where the properties both moveable and
immoveable have been bequeathed to the mother with all rights, the subsequent conditions imposed were
in the nature of cutting down her absolute estate to a limited one and the same was held to be void.
(23) The High Court of Gujarat, in a Full Bench judgment reported as , Shantilal Babubhai and others v.
Bai Chhani and others, held that where (here was a clear provision for "Malik Hak" making testator's wife
full and absolute owner of all the propertiers, any subsequent provision that the remainder was to go to
certain other heirs would not detract from the absolute ownership of the wife.
(24) Oudh High Court, in a Full Bench judgment reported as Air 1928 Oudh 49, Jagmohan Singal v.
Sheoraj Knur and others, also laid down that where it is found that the testator had intended to give an
absolute estate but attempted to limit the rights of the holder owing to an erroneous view of the power, the
attempt to limit the rights must be rejected on the ground of repugnancy.46
(25) The Lahore High Court also took a similar view in a Division Bench judgment reported as Air 1933
Lahore 201, Umrao Singh v. Baldev Singh and another, holding that where a Hindu testator declared in a
will that his three sons were his heirs and were absolute owners in equal shares of his moveable and
immoveable properties, but in a subsequent clause of the will he tried to restrict their power of alienation
up to a certain point, it was held that this restriction was clearly repugnant to the absolute estate created in
the earlier part of the will and, therefore, invalid.
(26) In face of preponderance of judicial authorities, the solitary judgment relied upon by the learned
counsel for the appellant in the case of Sukhamoy Chunder Dass (supra) does not advance her case
particularly when a cumulative reading of all the terms of the will in that case make it clear that the
predominant intention of the testator there was that "the estate shall remain intact" It was in that context
that it was held that the true construction and effect of the will, because of the testator having said
distinctly and repeatedly that "the estate shall remain intact", and then specifying that his heirs "shall be
entitled to enjoy profits thereof", was indicative of the intention that the testator did not want to give away
the estate hut all that he intended was to permit enjoyment of the properties to the persons mentioned in the
42
Family Law-I
will. It was in that setting of facts that it was held that he intended to create a perpetuity which was not
permissible under Hindu Law and thus the whole will would be void.
(27) It was noted in this judgment itself that the whole question resolved itself into what was the intention
of the testator to be gathered from the will. A clear distinction was made between cases where the testator
had expressed the intention to pass on an estate and then added a clause against alienation, holding that in
such a case only the clause against alienation would be void. It was only on the facts of the case before
their Lordships that it was held that the provision against alienation was confirmatory of the other part of
the will. It is thus clear from this judgment that where the intention of passing of the whole estate, as in the
present case, was apparent and there was only an added clause against alienation, then only subsequent
clause was to be treated as void and the bequest shall stand.47
(28) As observed at the outset that the right way to construe a will is to give effect as far- as possible to all
the words used by the testator and determine his real intention and thereafter to examine as to whether any
of the decided' cases could be applied to a given case or whether there was any resemblance of the will in
question with other wills on which decisions had been given. Adopting this rule of interpretation, I have no
hesitation in saying that the expression used in the present case is totally distinguishable from the one used
in Sookhmoy Chunder Dass (supra), and more akin to the cases on which reliance has been placed by
learned counsel for respondent no.1, and which have been noted in the foregoing discussion.
(29) There is support for interpreting the will in this manner also from the provisions of section 138 of the
Indian Succession Act, 1925 which provides as under: "138.Direction that fund be employed in particular
manner following absolute bequests of same to or for benefit of any other. Where a fund is bequeathed
absolutely to or for the benefit of any person, but the will contains a direction that it shall be applied or
enjoyed in a particular manner, the legatee shall be entitled to receive the fund as if the will bad contained
no such direction." The only contention Mr. Lonial raised in respect to this provision was that the
expression used was "fund" which in ordinary parlance means a given sum of money. But this limited view
which the learned counsel for the appellant sought to canvass for interpreting section 138 is not tenable for
the reason that the heading of the chapter in which this section occurs indicates that this section as well as
succeeding sections deal with bequests in general, and there are decisions where the term "fund" has been
43
Family Law-I
understood as being inclusive of moveable as well as immovable properties.
(30) This interpretation is supported from a Division Bench judgment of the Calcutta High (Court?)
reported as Air 193U Calcutta 731, Kedar Nath Poddur v. Gaya Nath Poddar and others, where although
the issues involved and propositions propounded were different; the provisions of section 138 of the Act
were held to be applicable to a case of devolution of properties including moveable properties other than
cash and also immovable properties.48
(31) To the same effect is an earlier judgment of the Calcutta High Court reported as Xxiv The Indian Law
Reports (Calcutta Series) 406, Lulu Rainjewnn Lal v. Dill Kocr, where the provisions of section 125 of the
Indian Succession Act, 1965 were under reference. It was held that the term "fund" used therein would
apply to moveable and immovable properties. It is to be noted that section 138 of the Act of 1925 is pari
materia with section 125 of 1965 Act.
(32) I am therefore of my clear view that the objections of the appellant were rightly dismissed and there is
no error in the view taken by the learned District Judge to the effect that present was a case of a will.
where absolute title was devised in favor of the son, and the subsequent conditions imposing restriction on
his right to sell etc. were to be ignored as being repugnant, and this is the only view possible on a total
view of the intention of the testator, :is embodied in the will.
(33) In addition to arguing in respect to legality of the will is a whole, is discussed above, Mr. Lonial also
reiterated the objection iis to execution of the will having not been proved and further that the probate
petition having not been accompanied by the original will it could not he entertained and that l the grant of
letter of administration was vitiated in view of this initial defect (34) If so far as the first objection as to the
will having not been duty proved to have been executed in the manner Hillier required by law the
contention is that out of the two alleged attesting Witnesses of the will, namely Jagdish Lal and Harbans
Lal, only one of them Jagdish Lal (Public Witness .I) was examined and that he too deposed in such a
manner that the execution of the will as propounded by the petitioner, was not free from suspicion.49
44
Family Law-I
(35) It is to be noted that the will bearing the date 9th September, 1974 is a registered will bearing Sub
Registrar's endorsement under the date 11th September, 1974. The original will has also come on record
having been filed during pendency of the proceedings by Shri S.L.Chaudhry, Advocate of Delhi who
happens to be husband of one of the daughters of the deceased, being respondent No.3 in the probate
proceedings. The certified copy from the office of the Sub Registrar obtained by the petitioner and
annexed with the petition has been proved as Ex.P. I which bears signatures of the executant as well as the
attesting witnesses. Jagdish Lal, one of the attesting witnesses examined as Public Witness .I, deposed that
he knew deceased Shri Godar Mal who was President of their Khokha Association during the period 1972
to 1976 of which the witness was a member, and that on the date the will was to be executed, Shri Godar
Mal had come to his shop and taken him to Kashmere Gate, Delhi and that the will was got typed by the
deceased himself from a typist in Kashmere Gate court and the said typist read over and explained the
contents of the will to the deceased after typing and thereafter Shri Godar Mal put his signatures on the
will in his presence as well as in presence of Harbans Lal at point 'A' and thereafter Harbans Lal and he
also signed the will as attesting witnesses. He identified his signatures at point 'B' and those of Harbans Lal
at point 'C'. It is thus a case where the requirements of section 63 of the Act have been fully satisfied and
the will duly proved in the manner laid down by section 68 of the Indian Evidence Act.
(36) The only question that remains to be seen is as to whether the present is a case where there existed
any such dubious circumstances that ought to have aroused suspicion of the Court and impelled it to
require the propounder to lead any further evidence to satisfy the Court as to whether the will propounded
by him was the true and genuine will of his father, Shri Godar Mal. On a careful consideration of all the
facts that have come on record, I have no doubt in my mind that there were no such circumstances existing
in this case, and the learned District Judge was right in coming to the conclusion that the will set up by the
propounder was genuine will, and duly proved to have been voluntarily executed.
(37) It is pertinent to note that the appellant is the only heir out of the four daughters, and heirs of the fifth
predeceased daughter to have persisted in her contest of the petition and both she and her husband bad
come into lhc witness box. The only other daughter, (respondent No. 5), who had filed objections does not
seem to have pursued them as no evidence was adduced by her and it was eventually closed by order dated
21st January, 1985.50
45
Family Law-I
(38) In so far as the appellant is concerned, it is on record that she along with her husband and children had
been living with the deceased for a number of years before the execution of this will in-part of the
property, namely, house No.T-23, Old Moti Nagar, New Delhi. The other daughter of the deceased,
namely, Smt. Shanti Rani, used to live in the second portion of the property No.T-12, Old Moti Nagar,
New Delhi. It is appellant's own case that the deceased lived with her and her family. It is also an
established fact that the son Dr. Parshottam Lal, who is beneficiary of the will, was throughout posted out
of Delhi and had been at different places in the State of U.P. and that at the time of death of his father, be
was posted at Ghaziabad and at that time his father was staying with him. He has clearly deposed that the
deceased had started living with him from 1976 onwards. There is not even an iota of suggestion to
respondent No.1 during his cross-examination on behalf of the objectors including the appellant that he
had visited Delhi during or any time before September 1974 when the will is purported to have been
executed. It is thus a case where the appellant, who is main objector, Along with her husband and other
family members was living with the testator in Delhi for a number of years in the same house, the son had
been posted outside and had not even visited Delhi around the time the will is stated to have been
executed. The authorities cited by Mr. Lonial to the effect that the propounder setting up a will must dispel
the suspicious circumstances surrounding it do not, therefore, arise for consideration because there are no
suspicious circumstances accompanying the execution of the will.
(39) It is also noteworthy that the appellant and her husband have taken conflicting stands in respect to this
will in their testimony. In the first instance, it is significant to note that there is no suggestion either to
Public Witness 1 Jagdish Lal or to respondent No.1 as Public Witness .2 that the signatures which 'have
been proved at point 'A' of Ex.P. 1 to be those of deceased Shri Godar Mal were not, in fact, his signatures;
there being only a bald statement that the will was a forged one, without any evidence to support it. The
plea as to will being forged one has been rightly dismissed as unsub-stantiated, in the absence of any
suggestion in respect to signatures not being genuine signatures.
(40) In fact, in part of the testimony the appellant admitted the existence of this will because what she
stated was that her brother bad got executed the will forcibly from her father in the year 1974, which fact
she claimed to have been informed by the deceased some time in the year 1979. There is again no evidence
to support this assertion and the allegation of petitioner having coerced his father is not credible for the
reason that neither the petitioner is shown to have visited Delhi around the time the will was executed nor
46
Family Law-I
the deceased is shown to have been with the petitioner or under his influence at the relevant time.51
(41) APPELLANT'S husband went a step further and asserted that the deceased Shri Godar Mal was not in
right possession of his mental faculties. Again he could not substantiate this allegation about the deceased
being mentally upset or mentally unfit at the time this will was executed and, in fact, at any other given
time. Although during cross-examination he claimed to have taken the deceased for treatment but could
not produce any record. No suggestion was put to the attesting witness that the deceased was not a
menially fit person.
(42) In fact, appellant's husband contradicted himself about this fact, when he deposed that his father-in-
law used to manage all his affairs till the time of his death. He also deposed that the deceased was keeping
a wooden khokha constructed in Karol Bagh area which corroborates the statement of Jagdish Lal (PW.1).
All that this witness stated was that the said khokha was demolished during Emergency some time in the
year 1976. This means, on his own showing the deceased was having a khokha as deposed by Public
Witness .1 in the year 1974 and to that extent Jagdish Lal was a likely person to be associated by the
deceased with the execution of his will. He went on to say that after the khokha was demolished, the
deceased removed his safe to the house but kept the keys himself and used to operate it and he kept all the
ornaments in the bank lockers which he also operated himself and bank account was also operated by him
till the time of his death. If that was so, the statement made by him that the deceased was not possessed of
right mental faculty, has to be dismissed as false and a made up story with a view to defeat the prayer of
the son who is beneficiary under the will to grant of probate. The appellant has also deposed that her father
also used to operate the bank account as also the locker himself, and that he used to draw cheques for
withdrawing the amounts. She could not say at what point of time the deceased ceased doing so. The -
inference would be inescapable that he remained throughout fit, and mentally sound, and at no point of
time had been reduced to such a condition that he could not look after his interest or manage his affairs,
and certainly he was not so in the year 1974 when the will was executed.52
47
Family Law-I
(43) Being aware of this situation, when the will could not be faulted on account of existence of any
suspicious circumstances, and present being a case where the propounder who is beneficiary of the will
had been no where near the testator around the lime will was executed, Mr. Lonial tried to fall back on
technical objections to ensure success for the appellant but on a conspectus of the circumstances and
cumulative consideration of the evidence of the attesting witness, I do not think that there is any flaw in
the manner of proof of the will or that of its execution. It is true that the second witness Harbans Lal has
not been examined but that does not make the evidence suffer from any legal-infirmity or become suspect
because under section 68 of the Indian Evidence Act, examination of one of the attesting witnesses was
sufficient. Non-examination of Harbans Lal does not give rise to any suspicion for the reason that it is not
a case where respondent No.1 deliberately avoided Harbans Lal nor any ulterior motive can be attributed
or adverse inference drawn to say that he was not examined for the reason that result for the propounder
may have been different, in the event of his being examined.
(44) Mr. Makhija also submitted, and to which there was no contradiction that even during evidence
Harbans Lal was summoned twice, but since he was not available, he was give up. The witness who has
been examined, namely, Jagdish Lal has categorically deposed that Harbans Lal had also signed the will in
the presence of the testator as well as in his presence after the deceased had signed the same in the
presence of both of them. He has also staled that Harbans Lal put his signatures in a language which was
neither English nor Urdu. The signatures in fact appear to be in Mundi both on the will at point 'C' and also
under the verification on the petition, purported to have been made by Harbans Lal.
(45) On a resume of the aforesaid discussion, I am of my clear view that the learned District Judge was
right in allowing the petition and granting letter of administration to respondent No. 1, and the appeal has
no merits. The same is accordingly dismissed, with costs. Counsel's fee RS.1000.00 .53
Bibliography
1. M. S. Rama Rao -MSL Law Books

48
Family Law-I
2. A Comparative Study of the General Provision of Indian Succession Act, 1925 and The
Hindu Succession Act of, 1956
3. indiankanoon.org/doc/1372277/
4. Legalservicesindia.com
5. Grrajeshkumar.com/class-notes-on-family-law
49

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Family Law-I

of a will or a trust. Bequests can take several forms such as:

• Specific bequest - A certain amount of cash, securities, or property.

• Percentage bequest - A stated percentage of the donor's estate.

1 M. S. RAMA RAO -MSL Law Books

LEGAL ASPECTS AND SECTIONS INVOLVED

Bequest to person by particular description, who is not in existence at testator's death.-Where a

death who answers the description, the bequest is void.

Exception.--If property is bequeathed to a person described as standing in a particular degree of kindred to a

go to that person, or, if he is dead, to his representatives. 2

The legacy goes to the representative of D.

son is entitled to the 1,000 rupees.

daughters are valid.

fund upon the daughters of B is void.

regard to the other children of A. 7

upon failure of such prior bequest is also void.

bequest is void under section 114. The bequest to B is void.9

which the accumulation has been directed to be made had elapsed.

interest under the will, or

by law for the safe custody of the wills of living persons:

(i) For the relief of poor people;

(ii) For the maintenance of sick soldiers;

(iv) For the support of scholars;

(v) For the erection or support of a school;

(vi) For the building and repairs of a bridge;

(vii) For the making of roads;

(viii) For the erection or support of a church;

(ix) For the repairs of a church;

(x) For the benefit of ministers of religion;

(xi) For the formation or support of a public garden11

All these bequests are void.

BEQUEST TO PERSON BY PARTICULAR DESCRIPTION, WHO IS NOT IN

Braja Sundar Das [A.I.R. 1933 Pat. 647]. 12

Rafagpalan [A.I.R. 1987 Mad. 75] 13

in favor of those son's sons was good.

defendant as Shebait invalid. 15

BEQUEST TO PERSON NOT IN EXISTENCE AT TESTATOR'S DEATH SUBJECT TO PRIOR

permissible in law. [G.Narayanan v. R.N. Rqjagopalan, A.I.R. 1987 Mad. 75]

the difficulties are not exhausted by these considerations. 17

remaining interest of the testator in the thing bequeathed.

Vide Hay v. Earl of Coventry.

RULE AGAINST PERPETUITY

the benefit of the infant who takes.

case Vanderplank v. King.

the compass of a life or lives in being.

gift to family idol is valid.

Attorney-General v. Pearson. A bequest in favor of an unnamed deity is void for uncertainty.

substitute some other mode of carrying it into effect.21

If on the proper construction of the will the mode of

the legatee was inoperative. Huseinbhoy v. Ahmedbhoy.

in regard to the whole class.

reason of any of the provisions of sections 113, 114 & 115.

which the accumulation has been directed to be made, had elapsed.

terest under the will or

which were substituted by Act XX of 1929.

for providing funds for children.23

which accumulation can validly by directed, viz.,

(a) the life of the grantor or settler ;

mere at the death of the grantor, settler or testator

to the income directed to be accumulated. 24

(1) the life of the transferor ; or

(2) a period of 18 years thereafter.

accordingly" - Report of the Select Committee. 25