All About Will

WHAT IS A WILL
Will is a legal declaration of the intention of a testator with respect to his

property, which he desires to be carried into effect after his death. It includes
codicil and every writing making a voluntary posthumous disposition of property.
It is a testamentary instrument by which a person makes disposition of his
property, to take effect after his death, and which, in its own nature, is
ambulatory and revocable during his life. Thus, a Will can be changed by the
executant as and when he so likes. It is a secret and confidential document
which the executant is never ordered to produce.
There are two essential characteristics of a Will:-
(i) It must be intended to come into effect after the death of the testator;
and
(ii) It must be revocable by the testator at any time.
Although Wills are usually made for disposing property, they can also be made
for appointing executors, for creating trusts and for appointing testamentary
guardians of minor children. In a case, the Andhra Pradesh High Court has held
that contents of the Will must indicate that it is intended to come into effect
after death of testator and that it is revocable at any time prior to his death and
a document cannot be treated as a Will by a mere reading of the heading of it;
Mandakini Naik v. G.K. Naik,MANU/AP/0092/2004 : 2004 (3) ALT 829 (AP HC).
A gift to take effect during the life-time of the donor is a deed of settlement and
not a Will. Section 63 of the Indian Succession Act, 1925 provides that a Will is
liable to be revoked or altered by the maker of it at any time when he is
competent to dispose of his property by Will.
When a person dies without having made a Will, he is said to have died
intestate. His property is then inherited by his legal heirs in accordance with the
law of inheritance applicable to them. It must be noted here that legal heirs
generally include close family members such as one's spouse, children, parents,
brothers and sisters.
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WHAT IS THE NEED OF A WILL
If one does not make a Will then his property will be inherited by legal heirs in
accordance with the laws of inheritance applicable to him. However, most of the people
would like to dispose of their property according to their own wishes. Thus, there arises
the need for making one's Will. Apart from it there are certain distinct advantages of
making a Will.
Firstly, when a person dies without having made a Will, there is often confusion
amongst the family members and relatives as to whether the deceased did make any
Will prior to his death or not, but if a Will is available, the only question that needs to be
ascertained is whether it is the last Will of the testator.
Secondly, a Will is absolutely personal document. More than anything, it is an

expression of the relationship with the family members or relatives etc. The views,
opinions and feelings, etc., are indicated in this document. A Will allows the devolution
of property in a personalised manner rather than letting the impersonal rules of
inheritance take effect.
Thirdly, many disputes can be resolved at the very outset if there is a clear disposition
of one's property in a Will. It will not be out of place to mention the imbroglio of Late
Mrs. Indira Gandhi and her daughter-in-law Maneka Gandhi, who were embroiled in a
litigation concerning the assets of the late Sanjay Gandhi. Had Sanjay Gandhi left
behind a Will, the possibility of any dispute surfacing between his mother and his wife
would have been very remote.
Fourthly, by means of a Will, one can appoint in writing, a testamentary guardian for his
infant children. A testamentary guardian is a person, who is appointed by a testament
or a Will. This point needs further clarification. In the event of the death of a parent, the
law would ordinarily uphold the right of surviving natural parent to be the guardian of
the child. However, if there is no surviving parent, the law attaches great importance to
the Will of a parent in deciding whom to appoint as a guardian. This is a matter of great
importance with regard to the future of the children, and therefore, this issue must be
discussed in detail with the proposed guardian before appointing him testamentary
guardian.
Fifthly, a Will provides more room vis-a-vis the laws of inheritance, which sometimes do
not cater to the special needs and requirements of the members of a family. For
instance, a father has two sons. One is healthy but the other is handicapped due to any
chronic disease since childhood. The laws of inheritance would treat both these children
on an equal footing. But by means of a Will one can have somewhat greater provision
for a handicapped son, a widowed daughter or an invalid parent. Not only that, by
means of a Will one can make some provision for a faithful servant, a nurse, a friend in
need of money, and so on. All such people could never receive any benefit whatsoever
under the laws of inheritance in the absence of a Will.
Sixthly, in the absence of a Will, even the most unwanted son, who had left the house
for disobedience, fraud, violence, etc., may turn up to claim his share of estate from his
father's property. Similarly, an adulterous wife might demand her share as per
inheritance laws.
There are, however, some disadvantages also in making a Will and they are mostly
psychological. In many cases, it has been observed that people lose all their interests in
life and die much before the time they would have lived.
If there is no Will, the property would be dealt with as per the laws of inheritance. For
Hindus, Buddhists, Jains and Sikhs the laws of inheritance have been codified in the
Hindu Succession Act, 1956. For Christians, the Indian Succession Act, 1925 will be
applicable. Parsis have a different law of inheritance. Similarly, Muslims have their own
law. That has, however, not been codified in any legislation but is based on their
religious texts. There are two major sects of Muslims-Shias and Sunnis. Both of them
have different laws of inheritance. The subject of Will by Muslims has been dealt with in
Chapter 16 of this book.

TYPES OF WILLS
SYNOPSIS
3.1 Privileged and Unprivileged Wills
3.2 Conditional or Contingent Wills
3.3 Joint Wills
3.4 Mutual Wills
3.5 Duplicate Wills
3.6 Concurrent Wills
3.7 Sham Wills
3.8 Holograph Wills
Before going for the description of the kinds of Wills, it is necessary to know that
Wills are always effective after death, never in the life-time of the testator.
Section 63 of the Indian Succession Act, 1925 provides that a Will is liable to be
revoked or altered by the maker of it at any time when he is competent to
dispose of his property by Will. Therefore, the essential characteristic of a Will is
its revocability.
3.1 Privileged and Unprivileged Wills
Wills executed according to the provisions of section 63 of the Indian Succession

Act are called Unprivileged Wills and Wills executed under section 66 of the Act,
by a soldier employed in an expedition or engaged in actual warfare, or by an
airman so employed or engaged, or by a mariner being at sea, are called
Privileged Wills. It is provided in the Act that such a Will may be written wholly
by the testator with his own hands and, in such a case, it need not be signed or
attested; or it may be written wholly or in part by another person, in which case,
it may be signed by the testator but need not be attested. If, however, an
instrument purporting to be a Will is written wholly or in part by another person
and is not signed by the testator, it shall be deemed to be his Will, if it is shown
that it was written by the testator's directions or was recognised by him as his
Will. If, on the face of it, the instrument appears to be incomplete, it shall
nevertheless, be deemed to be the Will of the testator, provided the fact that it
was not completed can be attributed to some cause other than the abandonment
of the testamentary intentions expressed in the instrument. Further, if such a
soldier, airman or mariner has written instructions for the preparation of his Will,
but has not died before it could be prepared and executed, the instructions shall
be deemed to be his Will; and if such a person has, in the presence of two
witnesses, given verbal instructions for the preparation of his Will, and such
instructions have been reduced to writing in his life-time, but he has died before
the Will could be prepared and executed, then such instructions are to be
considered to constitute his Will although, they may not have been reduced into
writing in his presence, nor read over to him. It is also provided that such a
soldier, airman or mariner may make a Will by word of mouth by declaring his
intention before two witnesses present at the same time, but such a Will shall
become null at the expiration of one month after the testator, being still alive,
has ceased to be entitled to make a privileged Will.
An unprivileged Will like codicil can be revoked by the testator only by another
Will or by some writing declaring an intention to revoke the same and executed
in the manner in which an unprivileged Will can be executed under the Act or by
burning, tearing or destroying of the same by the testator or by some other
person in his presence and by his directions with the intention of revoking the
same.
Mere loss of a Will does not operate as a revocation but where a Will is
destroyed by the testator or with his privacy or approbation, it is to be deemed
to have been revoked.
No obliteration, interlineation or other alteration made in any unprivileged Will

after the execution thereof, can have any effect except so far as the words or
meaning of the Will have been thereby rendered illegible or undiscernible, unless
such alteration has been executed in the same manner as is required for the
execution of the Will; but a Will, as so altered, shall be deemed to be duly
executed if the signature of the testator and the subscription of the witnesses is
made in the margin or some other part of the Will opposite or near to such
alteration, or at the foot or end or opposite to a memorandum referring to such
alteration, and written at the end or some other part of the Will.
A privileged Will or codicil may be revoked by the testator by an unprivileged

Will or codicil, or by any act expressing an intention to revoke it and
accompanied by such formalities as would be sufficient to give validity to a
privileged Will, or by the burning, tearing or otherwise destroying the same by
the testator or by some person in his presence and by his direction with the
intention of revoking the same. In such cases, it is not necessary that the
testator should, at the time of doing the act which has the effect of revocation of
the Will or codicil, be in a situation which entitles him to make a privileged Will.
Every Will is revoked by the marriage of the maker, except a Will made in
exercise of a power of appointment, when the property over which the power of
appointment is exercised, would not, in default of such appointment, pass to his
or her executor or administrator, or to the person entitled in case of intestacy.
This rule as to revocation of a Will by marriage, does not, however, apply to

Wills and codicils executed by Hindus, Buddhists, Sikhs or Jains.
An unprivileged Will, which has once been validly revoked, cannot be revived
otherwise than by the re-execution thereon with the prescribed formalities, or by
a codicil executed with such formalities and showing an intention to revive the
same. When a Will or a codicil, which has been partly revoked and afterwards
wholly revoked, is revived, such revival cannot extend to so much thereof as has
been revoked before the revocation of the whole thereof, unless an intention to
the contrary is shown by the Will or codicil.
It has already been stated that in the case of Hindus, Buddhists, Sikhs and
Jains, a Will could validly be made orally and no formalities for the execution of
a Will are required. This rule, however, did not apply to Wills made by Hindus,
Buddhists, Sikhs or Jains, on or after the 1st of September, 1870, within the
territories which were subject to the Provincial Government of Bengal or in the
local limits of the ordinary civil jurisdiction of the High Courts of Judicature at
Madras and Bombay, and also, to all such Wills and codicils made outside those
territories or limits, so far as they related to immovable property situated within
these territories or limits. The execution of such Wills was previously regulated
by the Hindu Wills Act (XXI of 1870). Except in the cases mentioned in that Act,
oral Wills could be made by person's professing the Hindu, Buddhist, Sikh and
Jain religions. A question, however, arises whether the Indian Succession Act,
1925 has the effect of depriving such persons of the privilege of making oral
Wills, or whether the provisions of section 63 of the Act do not merely provide
for the formalities which must be observed, if any of such persons chooses to
'execute' a Will, i.e., chooses to reduce his testamentary dispositions to writing.
It will be observed that section 63 of the Act provides for the manner of
'execution' of unprivileged Wills, it does not deal with the question of the
'making' of such Wills.
That the Act seems to make a distinction between the 'execution' and the
'making' of Wills, will appear from a comparison of the phraseology of sections
63 and 66 of the Indian Succession Act, 1925. While section 63 refers to the
'execution' of unprivileged Wills, section 66 prescribes the 'mode of making' and
rules for executing 'Privileged Wills'. A distinction, therefore, seems to be
contemplate between the 'execution' and the 'making' of a Will. The former
expression apparently applies to cases where the Will is to be reduced to writing,
and the expression 'making of a Will' includes the execution of a Will and also an
oral declaration by the testator of his testamentary disposition of his estate, if
such declaration legally amounts to a Will. The matter is a debatable one, and
no definite opinion, therefore, need be expressed on it at this stage.
When a Will is not proved by reliable and acceptable evidence, all the witnesses
in whose presence the testator has signed or affixed his mark to the Will, no
probate can be granted. In a case it has been observed: There has been nothing
on the record to show as to why the testator excluded his wife and daughter and
gave his entire property to the relative being his nephew. The testator has died
on the eighth day of the alleged execution of the Will in which he has admitted
that he was so ill that he was not able to go to the office of the Registrar, hence,
the High Court has held that in the absence of any evidence to remove the
suspicious circumstances surrounding the exhibition of the documents and the
physical mental condition of the testator, the propounder has not satisfied the
Court's conscience since the document does not speak for the testator; The
Goods of Late Sri Kisun Lal v. In the Matter of a petition for Probate, 2006 (64)
310 ALR (All HC).
3.2 Conditional or Contingent Wills
A Will may be expressed to take effect only in the event of the happening of
some contingency or condition, and if the contingency does not happen or the
condition fails, the Will is not legally enforceable. Accordingly, where A executes
a Will to be operative for a particular year, i.e., if he dies within that year, and A
lives for more years, after that year, then since A does not express an intention
that the Will be subsisting even after the particular year, it should be deemed
that he died intestate. A Conditional Will is invalid if the condition imposed is
invalid or contrary to law.
3.3 Joint Wills
A Joint Will is a testamentary instrument whereby two or more persons agree to

make a conjoint Will. Where a Will is joint and is intended to take effect after the
death of both, it will not be enforceable during the life-time of either. Joint Wills
are revocable at anytime by either of the testators during their joint lives, or
after the death of one, by the survivor.
A Will executed by two or more testators as a single document duly executed by

each testator disposing of his separate properties or his joint properties is not a
single Will. It operates on the death of each and is in effect for two or more
Wills. On the death of each testator, the legatee would become entitled to the
properties of the testator who dies.
3.4 Mutual Wills
A Will is mutual when two testators confer upon each other reciprocal benefits
by either of them constituting the other his legatee. But when the legatees are
distinct from the testators, there can be no position for Mutual Wills.
3.5 Duplicate Wills
A testator, for the sake of safety, may make a Will in duplicate, one to be kept
by him and the other to be deposited in the safe custody with a bank or executor
or trustee. If the testator mutilates or destroys the one which is in his custody it
is revocation of both.
3.6 Concurrent Wills
Generally, a man should leave only one Will at the lime of his death. However,
for the sake of convenience a testator may dispose of some properties in one
country by one Will and the other properties in another country by a separate
Will.
3.7 Sham Wills
If a document is deliberately executed with all due formalities purporting to be a

Will, it will still be nullity if it can be shown that the testator did not intend it to
have any testamentary operation, but was to have only some collateral object.
One thing must be borne in mind that the intention to make the Will is essential
for the validity of a Will.
3.8 Holograph Wills
Such Wills are written entirely in the handwriting of the testator.


TERMS COMMONLY USED FOR MAKING WILLS
SYNOPSIS
4.1 Abatement (of legacies)
4.2 Ademption (of legacies)
4.3 Absence of Will (Effect of)
4.4 Advocate's Failure to Return the Will
4.5 Amendment to Will
4.6 Bequest (Legacies)
4.7 Capacity of Party
4.8 Caveator
4.9 Codicil
4.10 Consent of Party Making Will
4.11 Death of Maker and Effect on Lagatees
4.12 Erroneous Will
4.13 Executor
4.14 Foreign Nationals
4.15 Insolvency of the Testator
4.16 Intestate
4.17 Lapse
4.18 Laws of Inheritance
4.19 Legatee or Beneficiary
4.20 Letters of Administration
4.21 Liability of Legatee
4.22 Maintenance
4.23 Privileged Will
4.24 Probate
4.25 Propounder
4.26 Recitals
4.27 Residuary Estate
4.28 Testator
4.29 Testimonium
4.30 Testament
4.31 Testamentary Capacity
4.32 Testamentary Guardian
4.33 Trustee
4.34 Witness (Attesting)
4.35 Wording of a Will
One must be fully aware of the terms which are used for making Wills, as that
will help the person to comprehend everything.
4.1 Abatement (of legacies)
If the assets, after payment of debts, necessary expenses and specific legacies,
are not sufficient to pay all the general legacies in full, the latter shall abate or
be diminished in equal proportions. In such cases a testator over-estimates the
value of his estate and under-estimates his debts. The balance may not be
sufficient to provide for all legacies, which may, therefore, have to be
proportionately reduced or cancelled.
4.2 Ademption (of legacies)
If anything which has been specifically bequeathed does not belong to the
testator at the time of his death or has been converted into property of a
different kind, the legacy is adeemed, that is, it cannot take effect by reason of
the subject-matter having been withdrawn from the operation of the Will. This
rule applies to specific legacies and not to demonstrative legacies.
4.3 Absence of Will (Effect of)
Unlike other documents, the Will comes to effect only when the maker dies and
when it is produced in the court. The maker who has already died cannot tell,
whether the Will has been executed by him or not. Hence, it is indeed to prove
beyond any reasonable doubt that the Will produced has been made by the
deceased testator and was his last Will.
In the absence of a Will the element of unfair disposition of property can be

found among the legatees. The aggrieved party who suffers from unfair
disposition of property or is completely debarred from the property of the
deceased due to false or forged or illegal Will, has to move to the court and the
court has to bear in mind any suspicious circumstances of such absence of Will.
And the unnatural disposition can be avoided taking into consideration of legality
in the share of the property as per law in force.
4.4 Advocate's Failure to Return the Will
When an advocate fails to return the Will, kept in his custody, in spite of demand
by testatrix, it leads to professional misconduct. The conduct of the advocate in
not returning the Will even on demand is unworthy of an advocate belonging to
noble profession, he has in no way right to withhold Will and he is duty bound to
return the Will on demand because the instrument is entrusted to his custody by
the maker only on belief or trust.
4.5 Amendment to Will
If the circumstances of the case demand that if an error is found or discovered

after the grant has already been made like error in surname of the deceased,
status of deceased, the time of death, mis-description of property to be
administered then these errors may be rectified. The amendment of the name of
the legatee or the executor can be made but no alteration is granted in papers
of which probate has been granted. If the amendment is refused then remedy
under the Indian Succession Act is available.
4.6 Bequest (Legacies)
Bequest or legacy are synonymous terms meaning a gift of property of
whatsoever description made by Will to a legatee. It is a gift by Will. In fact, it is
gift of only personal property.
4.7 Capacity of Party
According to section 59 of the Indian Succession Act, the testator making Will
must-
(i) not be a minor, and
(ii) be of sound mind.
Explanations 1 to 4 of the section state that a married woman, a deaf or dumb

or blind person, an insane during his soundness and person knowing
consequence of the Will can make a Will.
Hence a minor according to the section 3 of the Indian Majority Act cannot make
the Will but may validate the Will which is executed during the time of his
minority by ratification only when he attains his age of majority.
An insane person like lunatic, or person of unsound mind, idiot, mad, etc. cannot
make a Will.
4.8 Caveator
Caveat means a warning enjoining one from certain acts or practices, a legal
warning to a judicial officer to suspend proceedings until the opposition has a
hearing. A caveat is a notice to the Registrar or officer of the court not to let
anything be done by anybody in the matter of Will, or the goods of the
deceased, without notice to the person who lodges the caveat. The filing of the
caveat ensures that the court shall not grant probate of the Will without first
informing the person who has filed the caveat.
4.9Codicil
A written statement which supplements or modifies an existing Will. It must be

executed in the same manner as provided for the execution of a Will.
4.10 Consent of Party Making Will
According to section 61 of the Indian Succession Act, 1925 a Will or any part of
a Will, the making of which has been caused by fraud or coercion, or by such
importunity as takes away the free agency of the testator is void. If one part of
the Will is obtained through the absence of free consent of the testator then that
part can be rejected if the other part is severable. If one of the beneficiaries
exercises fraud, undue influence or coercion in making the Will in the mind of
testator then that part is void but not the other parts in favour of the other
legatees. The court does not recognise every influence that is to bear upon the
mind of the testator as undue.
4.11 Death of Maker and Effect on Legatees
That it is the question of circumstances at the date of testator's death and not
the question of circumstances at the date of Will, is noteworthy.
A gift is not of legal effect, if at the death of the testator a contingent event
happens after the period that is allowed in the Rule and even if it happens within
the period and if at the death of the testator it may possibly happen after the
expiry of the period. Hence, if in a Will the conditions contain that bequest is to
the daughter of testator for life and after the death of the daughter, to her
children after attaining majority, but the daughter gives birth to only a son that
too after death of testator, then the whole bequest is void ab initio because the
vesting is delayed beyond the life of the testator, though the daughter herself
acts as a guardian. Where a testator makes a Will in favour of his son and after
his death to the nephew equally, and if he had no son and his wife adopts
another and gives the property to him on the attaining of majority, the bequest
or Will is void.
4.12 Erroneous Will
If the thing which the testator intended to bequeth can be sufficiently identified
from the description of it given in the Will, but some parts of the description do
not apply, such parts of the description shall be rejected as erroneous, and the
bequest shall take effect. If a letter of administration is granted to legatee under
the Will by a foreign court, it cannot be of any assistance to the legatee in
proving validation of the Will. If the statement of the body of the Will regarding
description of the property and head note of the Will contradict, it is the former
that prevails. In case they are bound to descriptions of a property and a
particular subject is devised, one precisely corresponding to the description in
the device and the other not completely answering thereto, then the latter will
be excluded.
4.13 Executor
A person to whom the execution of the last Will of a deceased person is, by the
testator's appointment, confided.
4.14Foreign Nationals
The procurement of Will is not necessarily dependent on validity. Hence, a

foreign national or alien is not debarred by law from making Will; Tagore v.
Tagore, 18 WR 359 PC.
They are also capable of being legatees or devices. According to Naturalisation

Act, 1996, an alien can be able to procure a naturalisation certificate. Hence, he
is entitled to the rights and privileges of a British national born within Indian
territory.
4.15 Insolvency of the Testator
According to the provisions of section 325 of the Indian Succession Act, 1925,
the debts of every description must be paid before any legacy. But in case of
Lala Goverdhan Das v. Harish Chandra, MANU/WB/0351/1933 : AIR 1934 Cal
609, the fact was interpreted deeply. When the debts are not ascertained
properly, one cannot say that the estate is solvent or insolvent. In section 325
the mention of debts of every description does not mean that it is the duty of
the executor in every case, i.e., solvent or insolvent to pay each creditor before
he pays any legatee. Where in case the testator directs that the debts are to be
paid out of the estate then it states only the ordinary rule of language but does
not take weight and further analysis. It is the duty, no doubt, of an
administrator of the Will to ascertain whether the estate is solvent or insolvent
and not to pay to the legatees before debts have been discharged.
4.16 Intestate
When a person dies having made a legally valid Will he is said to have died
testate. On the other hand, if he dies without having made a Will he is said to
have died intestate.
4.17 Lapse
The termination of a right or privilege through disuse. A legacy lapses where the
legatee dies before the testator. For instance, A makes a bequest of certain
property in favour of B. However, B dies before A. The bequest, then, cannot
naturally take effect and the legacy is said to have lapsed.
4.18 Laws of Inheritance
When a person dies without having made a Will, his property shall devolve to his
legal heirs according to the laws of inheritance applicable to him. These laws
shall be determined by the community he hails from. Laws of inheritance are
referred to commonly as Rules of Intestate Succession, and vary from
community to community.
4.19 Legatee or Beneficiary
One to whom a legacy is bequeathed or a devise is given under a Wilt or codicil.
4.20 Letters of Administration
When a person who had executed a legally valid Will dies without having named
an executor, one of the beneficiaries named in the Will shall have to apply for
grant of letters of administration. The procedure for grant of letters of
administration is more or less similar to that for the grant of probate.
4.21 Liabilityof Legatee
A legatee is liable to the creditor. He is liable to refund the legacy that he has
received, irrespective of whether the assets of the testator's estate are sufficient
or not at the time of death of the testator to pay both debts and the legacies, as
well as irrespective of whether the payment of legacy by the executor is
voluntary or not.
4.22Maintenance
It generally means the provision of food, clothing and other basic necessities of
life. It varies according to the position and status of a person.
4.23 Privileged Will
A Will which is valid even though it is not in writing, or if in writing, is executed

without the prescribed formalities of signature by the testator and attestation by
witnesses. The right to make privileged Will is conferred on a soldier, airman or
mariner in certain circumstances.
4.24 Probate
A certificate issued by the court on the application of the executor appointed by

a Will to the effect that the Will is valid. It is also the official evidence of the
executor's right to administer the estate of a deceased person.
4.25 Propounder
The person who is seeking to prove the Will and who asserts that the disputed
Will is valid.
4.26 Recitals
That part of a deed which recites what has been done or already happened.
Recitals are of two kinds: (1) Narrative recitals, or (2) Introductory recitals.
Recitals provide relevant factual and back-ground information. Recitals
invariably begin with the word 'Whereas' in bold letters. This part does not
contain any bequests.
4.27 Residuary Estate
The balance property of a deceased person after paying off all debts, funeral
expenses, expenses in administering the estate, etc., and after providing for all
bequests. If the Will does not specifically state who will be entitled to receive the
residuary estate, it will be inherited by the testator's legal heirs in accordance
with the laws of inheritance applicable to them.
4.28 Testator
A male person who makes a Will, A female who makes a Will is known as
testarix.
4.29 Testimonium
The concluding part of a Will is known as the testimonium. It generally begins

with "In witness whereof......." and contains the signature of testator, the
attestation clause and signature of witnesses.
4.30 Testament
A Will of personal property. A Will of land is not called a testament.
4.31 Testamentary Capacity
Mental capacity of the testator to make the Will in question. The nature of the
instrument executed, its simplicity or complexity is one ingredient of
testamentary capacity. To constitute a good testamentary disposition, the
testator must retain a degree of understanding to comprehend what he is doing.
Infants and mental patients have no testamentary capacity.
4.32 Testamentary Guardian
A guardian appointed by a person's Will or codicil over his or her minor child.
4.33 Trustee
A person who holds or manages property for the benefit of others.
4.34 Witness (Attesting)
The person who observes the signing of the Will by the testator in case he is
required at some later stage to verify the authenticity of the testator's signature.
After the testator has signed, he adds his own signature as a witness. In a case,
the court held that execution of the Will was not properly proved as the attesting
witness examined did not swear that he had seen the testator putting his
signature in the document and the testator saw the putting of signature by
himself and the other witness; Kunjipennu v. Chandrika, 2003 (3) KLT 75 (SN).
In a case, the court has held that Will must be attested by two or more
witnesses. However, it is not necessary that both attesting witnesses should be
present at the same time. In case the genuineness of Will is disputed, burden is
on defendant to substantiate. Registration by itself is not sufficient to remove
suspicion; Ammini Ammav v. Govindan Nair, 2003 (2) KLT 101 (SN).
In Parikshit Choubey v. Din Dayal Choubey, 2010 (87) AIC 347, the Jharkhand
High Court relying upon the case Mathew Oommen v. Suseela Mathew, 2006
(38) AIC 65 (SC): MANU/SC/0212/2006 : AIR 2006 SC 786: 2006 AIR SCW
208: 2006 (2) Andh LT 3: MANU/SC/0212/2006 : (2006) 1 SCC 519: 2006 (1)
SCJ 661: 2006 (1) SCALE 75: 2006 (1) Supreme 44 has held that there is no
dispute that scribe of the Will can also be an attesting witness but therein the
scribe clearly said that he was the scribe of the Will and was an attesting witness
also, but in the case in hand the witness simply said that he was scribe. He did
not say that he was also an attesting witness. In Jagiri Ram (Dead) through LRs.
v. Ralla, 2009 (82) AIC 389, Punjab & Haryana High Court has held that a Will is
a declaration in a prescribed manner which specifies the intention of the person
executing it with respect to the matter which he wishes to take effect after his
death. As required under section 63 of the Succession Act, Will is to be attested
by two or more witnesses and each of whom should have seen the testator
signing or affixing his mark to Will or has seen other person signing the Will in
the presence and by the direction of the testator and each of the witnesses shall
sign the Will in presence of the testator. It is further held that once the courts
below concurrently on appreciation of evidence records conclusion against the
validity of a Will, the High Court should not substitute its own opinion even when
two views are possible, unless the finding is found to be perverse or illegal.
In one case, the court has held that it is imperative that a Will has to be proved
by examining at least one among the attesting witnesses. No examination of
independent witnesses and non-production of original Will would establish that
the Will has not been duly proved; Anthoniammal v.
Appavu, MANU/KE/0012/1996 : AIR 1996 Ker 64:1996 AWR 134: 2003 (2) KLT
23 (SN).
The Supreme Court has held that if the testator had used different pen than the
pen that was used by attesting witnesses, the Will cannot be disbelieved on this
ground alone; Hazara Baradri v. Lokesh Dutta Multani, MANU/SC/2024/2005 :
AIR 2006 SC 370.
In Tajinder Singh v. Ram Murti, Lamberdar, 2010 (90) AIC 678, the Himachal
Pradesh High Court has held that mere registration of Will is not sufficient to
hold that a valid Will was executed. The court observed that obviously there are
various discrepancies in the statements of witnesses produced by the defendants
before the civil court and contrary. No doubt the stamped endorsements on the
rear of the Will indicates that the Will was read over and explained to Sohan
Singh by the Registrar but the Registrar was not examined by the propounder of
the Will. Accordingly appeal was dismissed.
4.35 Wording of a Will
A great weight is given to the wordings of a Will. A full effect must be given
which is main part of operative portion of a Will in the light of declared wish of
the testator as well as other provision of the Will. The court in any way has to
interpret the words in their both ordinary and grammatical sense and
simultaneously to give weight if there is absurdity or inconvenience. Hence, the
whole of words should be taken together without any surmise in the light of the
intention of testator. Where the maker includes additional words or phrase then
it shall mean additional meaning. In order to ascertain the very material purpose
of the Will, the court has to go through each and every word used by the
testator in a Will.

WHAT CAN BE BEQUEATHED IN A WILL
SYNOPSIS
5.1 Future Properties
5.2 Leasehold Property
5.3 Extent of the Right to Bequeath
All properties, movable or immovable, of which the testator is the owner and
which are transferable can be disposed of by a Will. Property which is not legally
transferable cannot be bequeathed. If a person has only a life-interest in a
property, he cannot make a Will in respect of it.
The Hindu Succession Act, 1956, very clearly says that a Hindu may dispose of
by Will or other testamentary disposition any property, which is capable of being
so disposed of by him, in accordance with the provisions of the Indian
Succession Act, 1925, or any other law for the time being in force and applicable
to Hindus. By way of explanation it is further said that the interest of a male
Hindu in a Hindu Mitakshara coparcenary property or the interest of a member
of a tarward, tavazhi, illom, kutumba or kavaru in the property of the tarward,
tavazhi, illom, kutumba or kavaru shall, notwithstanding anything contained in
the Act or any other law for the time being in force, be deemed to be property
capable of being disposed of by him or by her.
Under the Act, unless there is a local custom to the contrary, a Hindu can
bequeath his interest in the joint family property to any person he desires by
means of a Will. Thus, a Hindu governed by Mitakshara law can dispose of by a
Will his undivided coparcenary interest. But a Hindu male, holder of ancestral
immovable property governed by the Punjab customary law, is still subject to
restrictions on his power of disposition. But a female Hindu, in all cases, is
entitled to dispose of her property without any restriction.
5.1 Future Properties
Testator can also bequeath properties, incomes and interests that may be
acquired by him or accrue to him after the execution of the Will.
The following properties generally form the subject-matter of a Will:-
(i) Annuity,
(ii) Appurtenances,
(iii) Belongings,
(iv) Books including Manuscripts,
(v) Business,
(vi) Car,
(vii) Chattels,
(viii) Dents,
(ix) Effects.
(x) Estate,
(xi) Furniture including paintings, linen, utensils, etc.,
(xii) Fixtures,
(xiii) Household goods,
(xiv) Income including dividends and bonus shares,
(xv) Investments in stocks, shares, debentures and deposits other than

in bank or banks, bonds and securities,
(xvi) Jewellery including unamounted diamonds,
(xvii) Lands and tenements,
(xviii) Money, i.e., cash and bank balances,
(xix) Interest in partnership including declared but undrawn profits and

undeclared profits.
It must be clearly borne out in mind that one can execute the Will of only his
own property. No Will can be made in respect of the property which belongs to
someone else and vice versa.
5.2 Leasehold Property
In case of leasehold property, say a plot of land leased out by D.D.A. for 99
years, the ownership of property is not absolute but limited as after the expiry of
lease period, i.e., 99 years, the ownership of property will revert back to D.D.A.
However, such properties can be validly disposed of in a Will.
So long as the lease does not expire, the bequest is effective. If the lease
expires during the life time of a testator, no bequest is made.
5.3 Extent of the Right to Bequeath
The right to bequeath the assets according to testator's wishes is not absolute.
There are certain limitations. For instance, he cannot be permitted to make a
Will in which he leaves all his properties to a charity and in the process reduce
his family members to a state of poverty and deprivation. In the case of a Hindu
testator, the freedom to bequeath the assets is curtailed by the Hindu Adoption
and Maintenance Act, 1956. The Act provides that certain members of the
testator's family who are classified as dependents shall be entitled to claim
maintenance from the estate of the testator even if he has not bequeathed any
property by means of a Will.
Thus, after the death of a Male Hindu testator, his widow would be regarded as a
dependent and is entitled to receive maintenance. However, the reverse is not
true. Further, in case of male and female testators their parents, minor children
(legitimate as well as illegitimate) and their unmarried daughters are regarded
as dependents and the maintenance is granted to them only if he or she does
not possess sufficient financial resources for maintenance. Maintenance includes,
in all cases, provision for food, clothing, residence, etc.
The essence of the matter is that no body can bequeath all his property to an
institution or trust leaving his family and dependents in poverty and deprivation.

WHO CAN MAKE A WILL
SYNOPSIS
6.1 Will by a Married Woman
6.2 Testamentary Guardians
6.3 Will Obtained by Fraud, Coercion or Importunity
6.4 A Will may be Revoked
6.5 Will by Coparcener
Regardless of the capacity of a person to make a Will, it is provided in section 5

of the Indian Succession Act, 1925, that every person of sound mind and not
being a minor may dispose of his property by Will. A minor is a person, who
according to the Indian Majority Act, 1875, has not attained his majority, i.e.,
who has not completed the age of 18 years. Thus, in the case of Hindus,
Buddhists, Sikhs, Jains and Christians a testator must be at least 18 years of
age at the time of the making of the Will and should, further, be competent to
make a valid Will. Apparently the Mohammedans are not governed by this
definition of minority, and therefore, in the case of persons who follow the
Muslim Law, the age of majority, to determine the capacity to make a Will, must
be ascertained with reference to the provisions of the Mohammedan Law.
6.1 Will byaMarried Woman
A married woman is entitled to dispose of by a Will any property which she can
otherwise alienate during her life-time. Deaf, dumb and blind persons are not
thereby incapacitated from making Wills if they are able to know what they can
do by it. A person who is ordinarily insane, is also competent to make a Will
during an interval in which he is of sound mind. A person who is in such a state
of mind on account of intoxication or illness or from any other cause, that he
does not know what he is doing, is not competent to make a Will during the
continuance of that state.
6.2 Testamentary Guardians
Except in the case of Hindus, Buddhists, Sikhs, Jains, Christians or even

Mohammedans, a father whatever his age may be, is competent to appoint by
Will a guardian or guardians for his children during minority, and the property of
a minor may be settled in contemplation of marriage, provided the settlement is
made by the minor with the approbation of his father, or if the father is dead or
absent from India, with the approbation of the High Court. Persons professing
the religions mentioned above are, however, governed in these matters by their
personal laws.
6.3Will Obtained by Fraud, Coercion or Importunity
In order to be able to make a valid Will a testator must have a 'disposing mind';
otherwise the Will is void. A 'disposing mind' implies absence of fraud or
coercion, or such importunity as would negative the existence of the free agency
of the testator. The expression 'disposing mind' is a term of art and its technical
implications are discussed in a number of judgments of the Courts in India. It
implies not only absence of undue influence as understood in law, but something
more, e.g., a desire to make a Will, and the capacity to comprehend the true
nature and the consequences of the dispositions made by virtue of the
instrument. The expression, 'such importunity as takes away the free agency of
the testator', as used in section 61 of the Indian Succession Act, 1925, embraces
a wider range of circumstances than would be included in the words "undue
influence", as ordinarily understood in the law relating to contracts. In a case
two different Wills were set up by parties. Account Numbers of banks was not
mentioned specifically in Will set up by plaintiff. Plaintiff represented himself to
be exclusive owner of premises, being sole legal heir of deceased, without
mentioning factum of Will alleged to have been executed by deceased in his
favour. Comparison of signature of deceased on two Wills showed marked
difference. Signature on Will set up by defendants was similar to those
appearing in various other documents such as bank account forms. Witnesses
produced by plaintiff admitted that deceased had weak eye-sight and still he
signed the Will without using spects. Deceased was staying with and was taken
care of by defendant. The Court held that Will set up by plaintiff was not valid
and legal; Manmohan Singh v. Joginder Kaur, AIR 2003 NOC 26 (Del HC).
However, all influences are not unlawful. Persuasion appeals to the affections of
ties of kindred, to a sentiment of gratitude for past services, or pity for future
destitution, or the like; these are all legitimate, and may be fairly pressed on a
testator; on the other hand, pressure of whatever character, whether acting on
the fears or the hopes, if so exerted as to overpower the volition without
convincing the judgment, is a species of restraint under which no valid Will can
be made. Importunity to threats, such which the testator has not the courage to
resist, moral command asserted and yielded to for the sake of peace and quiet,
or of escaping from distress of mind or social discomfort, these if carried to a
degree in which the free play of the testator's judgment, discretion or wishes, if
overborne, will constitute undue influence, though no force is either used or
threatened. In a word, a testator may be led but not driven; and his Will must
be the offspring of his own volition, and not the record of someone else's.
6.4 A Will may be Revoked
A Will being a unilateral transaction is liable to be revoked or altered by the

maker of it at any time, when he is competent to dispose of his property by Will,
and consequently no interest can be claimed under a Will during the life-time of
the testator.
It has also been held that non-citing of necessary party can be ground for
revocation of probate granted under section 263 of the Act; Yuv Rajnarain
Gorwaney v. State, 125 (2005) DLT 401 (Del HC).
In one case, it has also been held that probate can be granted only of last Will
and testament of deceased; Rajan Suri v. State, 125 (2005) DLR 433 (Del HC):
2007 AIHC 146 (NOC): 2006 (39) AIC 147.
6.5 Will by Coparcener
In one case, the court has held that Will can be executed by coparcener for his
undivided share under Mitakshara School of Hindu Law. It is also held that
evidence of witness not showing that both witnesses had signed the Will after
testator signed it, would damage the Will; Krishna Murai Mangal v. Prakash
Narain, AIR 2003 NOC 37 (MP HC).


TRUST FOR CHARITABLE PURPOSE
SYNOPSIS
7.1 How to Select Trustees
7.2 Creation of Trust for Wills-Difference between an Executor and a Trustee
7.3 Tax Saving through Trust under a Will
In most of the cases it is seen that a trust is created by the testator, when he
has some charitable, religious or philanthropic interest in his mind. There is no
need to appoint trustee if he makes a Will bequeathing various sums of money
to already established and functioning charities. He can also set up a trust under
the terms of Will appointing certain persons to carry out certain specified
charitable activities.
7.1 How to Select Trustees
Selection of trustees is really a mindboggling question. Therefore, a testator

must always carefully select the trustee who can properly manage the properties
of the testator.
7.2Creation of Trust for Wills-Difference between an Executor and a Trustee
Generally such people who do not have issues or nearest relatives create trusts
so that their properties may be looked after properly after their death and fruits
thereof may go to genuine persons. A trustee is also appointed by people, in
case specified beneficiaries are minor.
There is a difference between a trustee and an executor. An executor is

appointed to execute the terms of the Will, whereas the purpose of a trustee is
to ensure management of certain properties belonging to the executor.
7.3 Tax Saving through Trust under a Will
Of late, this practice is adopted. It is more meant or intended to plan the tax
than for any other purpose. In this system, a family trust is created to provide
benefit through transfer of property to the trustee. The trust can be either a
specific or a discretionary one. In specific trust, the share of beneficiary is
specified in the trust deed, whereas in discretionary trust, the trustees enjoy full
discretion in the matter of application of trust funds for the benefit of one or
more beneficiaries.


PROOF AND EFFECT OF WILLS
SYNOPSIS
8.1 Right as an Executor when Established
8.2 Right to Intestate Property
8.3 To whom Probate can be Granted
8.4 Probate not to be Granted to a Minor
8.5 When Bequest is Void
8.6 Bequest to take effect on Failure of Prior Bequest
8.7 Bequest to Religious or Charitable Uses
8.8 Bequest upon Impossible Conditions
8.9 Exceptions of Making Wills
8.1 Right as an Executor when Established
Unless probate or letters of administration, with the Will attached, have been
granted by a competent court, no right under the Will, either as an executor or
as a legatee, can be established in any court of law with respect of the estate of
the Will. In one case, the courts held that a reading of provisions of sections 57
and 213 of the Indian Succession Act, 1925, requiring probate does not apply to
Wills made outside Bengal and the local limits of the ordinary original jurisdiction
of the High Courts of Madras and Bombay except where such Wills relate to
immovable properties situated within those territories. Accordingly, an executor
or legatee, in case the Will is executed in Delhi, can establish his rights without
seeking probate; Santosh Kakkar v. Ram Prasad, 71 (1998) DLT 147 (Del HC).
8.2 Right to Intestate Property
Except in the case of the intestacy of a Hindu, Buddhist, Sikh or Jain or an

Indian Christian, no right to any part of the property of a person who has died
intestate, can be established in any court unless letters of administration have
first been granted by a competent court.
It follows from the above that, except in the cases governed by the Hindu Wills
Act, 1870, it is not necessary for a Mohammedan, Hindu, Buddhist, Sikh or Jain
to obtain probate, or letters of administration with the Will annexed, in order to
successfully claim title in a Court of Law to the estate of a testator under or
through his Will; but persons belonging to other religions must obtain probate,
or letters of administration with the Will annexed, from a competent court before
they can claim any title in a court of law to the estate of a deceased testator
under a Will. A good title can, therefore, be successfully asserted to the estate of
a testator under his Will in proceedings in a court or otherwise, in the case of
such exempted persons, even in the absence of probate or letters of
administration with the Will annexed.
Where the deceased has died intestate, i.e., without having left a validly
executed Will, letters of administration must be obtained in order to establish a
title to his estate in a court of law except when the intestate professed one of
the religions mentioned above, or was an Indian Christian.
Where a person has died intestate, devolution of his estate in the case of the
Hindus, Mohammedans, Sikhs, Buddhists or Jains, is regulated by the personal
law of the deceased. But in the case of others, rules of succession have been laid
down in Part V of the Indian Succession Act, 1925, a separate chapter in that
part being devoted to the special rules for the estates of the Parsi intestates.
In spite of the fact that a deceased person has left a duly executed Will and
probate or letters of administration with the Will annexed having been granted
by a competent court, the property of the deceased, which would otherwise have
passed by-survivorship to some other person, does not vest in the executor or
the administrator, if the deceased was a Hindu, Mohammedan, Buddhist, Sikh or
Jain, Indian Christian or Parsi or was an exempted person as defined in section 3
of the Indian Succession Act, 1925. As a broad rule, it may be stated that the
Indian Succession Act, 1925, is concerned mainly with the method of execution
of Wills and their proof in the competent courts, and also, with the manner of
vesting of the estate of the deceased testator in the executor or administrator. It
is not concerned with the right of the deceased in the property mentioned in the
Will or with his competancy to bequeath the same, nor does it confer any
greater title on the executor or the legatee than what the deceased testator had
in it. All these matters must be decided with reference to the ordinary rules of
succession and inheritance as laid down in the personal law of the deceased. A
broadly settled rule is that a person is not entitled to bequeath by Will what he is
not competent to dispose of inter vivos.
8.3 To whom Probate can be Granted
A probate can be granted only to an executor appointed by the Will; but where
no such person has been appointed by the Will, letters of administration with the
Will annexed can be granted to the person or persons entitled to the
administration of the estate of the deceased. It follows from this that, if the
deceased has left a validly executed Will, no letters of administration can be
granted to anybody except letters of administration with the Will annexed. The
appointment of an executor may be expressed in the Will or inferred by
necessary implication.
8.4 Probate not to be Granted to a Minor
Probate or letters of administration cannot be granted to any person who is a

minor or is of unsound mind, nor to any association of individuals unless it is a
company which satisfies the conditions prescribed by rules that may have been
made by the State Government in this behalf. Therefore, a minor or a person of
unsound mind or an association of individuals, unless it complies with the rules
prescribed by a State Government, ought not to be appointed as an executor of
a Will.
8.5 When Bequest is Void
While drafting a Will, care should be taken not to create an estate which may
have been prohibited by the personal law of the testator or to make bequests
which may be void under the law. A bequest made to a person by a particular
description, when there is no such person in existence at the testator's death
who answers the description, is void. No bequest is valid which offends the rule
against perpetuity. In other words, no bequest is valid whereby the vesting of
the thing bequeathed is to 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 expiry of that period, and to whom if he attains full age,
the thing bequeathed is to belong. 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 bequest in favour of the person not in existence is void
unless it comprises the whole of the remaining interest of the testator in the
thing bequeathed.
8.6 Bequest to take effect on Failure of Prior Bequest
In both the cases referred above, if any further bequest is made which is
intended to take effect after or upon failure of such prior bequest which is
declared to be void, the later bequest also becomes void. A direction in a Will
that the income arising from any property shall be accumulated either wholly or
in part during any period longer than a period of 18 years from the death of the
testator, is void to the extent to which the period during which the
accumulations directed exceeds the period of 18 years. In such a case, at the
end of the period of 18 years, the property and the income thereof must be
disposed of as if the period during which the accumulation has been directed to
be made has elapsed. This rule against accumulation, however, does not apply
where the direction for accumulation for a longer period than 18 years has been
made for the purpose of the payment of the debts of the testator or of any
person taking any interest under the Will, or for the purpose of making provision
of portions for children or remoter issue of the testator or of any other person
taking any interest under the Will, or for the purpose of preservation or
maintenance of any property bequeathed.
8.7Bequest to Religious or Charitable Uses
A person having a nephew or a niece or any nearer relative cannot bequeath his
property to religious or charitable uses, except by means of a Will and deposited
within six months from its execution in some place provided by law for the safe
custody of the Wills of living persons.
8.8 Bequest upon Impossible Conditions
A bequest, the vesting of which is made subject to a condition which is

impossible, is void. Similar consequences follow, if the condition is contrary to
law or to morality.
8.9 Exceptions of Making Wills
It must be remembered that these rules, with the exceptions laid down in
section 118 of the Indian Succession Act, 1925, relating to a person having a
nephew or niece or a nearer relative, apply to Hindus, Buddhist, Sikhs or Jains,
in addition to the restrictions imposed by their personal law. Persons belonging
to these religions are not entitled to bequeath property which they could not
have alienated inter vivos, nor can they deprive by Will any person of any right
of maintenance of which, but for the application of the rules contained in the
Indian Succession Act, 1925, he could not have been deprived. Nor are such
persons authorized to create any interest in property which they could not have
created before the 1st September, 1870. Further, nothing contained in the
Indian Succession Act, 1925, is intended to effect any law of adoption or
intestate succession in the case of persons belonging to these religions.

EXECUTION OF WILLS
SYNOPSIS
9.1 Applicability of Indian Succession Act, 1925
9.2 Applicability of Indian Evidence Act, 1872
9.1 Applicability of Indian Succession Act, 1925
Rules relating to the execution, interpretation and proof of Wills, and their legal
effect, though constitute a separate branch of the law yet it is important to
discuss them briefly in this book. These rules are to be found in the Indian
Succession Act, 1925, (XXXIX of 1925).
It is provided in section 63 of the Indian Succession Act, 1925 that every

testator, not being a soldier employed in an expedition or engaged in actual
warfare, or an airman so employed or engaged, or a mariner at sea, must
execute his Will according to the following rules:
He must sign or must affix his mark to the Will, or it must be signed by some
other person in his presence and by his direction; and the signature or the mark
of the testator, or the signature of the person signing for him, must be so placed
that it shall appear that it was intended thereby to give effect to the writing as a
Will. It is further provided that the Will must be attested by two or more
witnesses, each of whom has seen the testator sign or affix his mark to the Will
or has seen some other person sign the Will, in the presence and by the
direction of the testator, or has received from the testator a personal
acknowledgment of his signature or mark, or of the signature of such other
person; and each of such witnesses must sign the Will in the presence of the
testator, but it is not necessary that more than one witness should be present at
the same time. No particular form of attestation is necessary.
It must, however, be observed that the witnesses must see the testator sign or
affix his mark thereon, or see the other person sign the Will in the presence of
and by the direction of the testator, or must receive from the testator an
acknowledgement of the signature or mark. An acknowledgment by the other
person will not be sufficient. It must, also be noted that while the testator, can
affix his mark on the Will, instead of signing it, the other person must sign it and
their mere mark will not apparently be sufficient, in spite of the definition of the
expression 'sign' in the General Clauses Act, 1897. Even if a person sees the
testator sign and signs the Will after seeing the testator sign and in the presence
of the testator, he would not be an attesting witness unless he puts his signature
on the Will animo attestendi.
The signatures of the Sub-Registrar and of an identifying witness made on the

Will in the presence of the testatrix after it had the signature of one attesting
witness who had signed the Will in the presence of the lady and after the lady
admitted to them the execution of the Will are sufficient compliance with the
provisions of section 63 of the Indian Succession Act.
The Punjab & Haryana High Court has held that a Will attested only by one
witness whereas the requirement is of two or more witnesses as per section 63
of the Succession Act, is invalid; Dhaman v. Jiya Lall, AIR 2005 P&H 191 (P&H
HC): 2005 (33) All Ind Cas 738: 2005 (1) Land LR 687: 2005 (2) Pun LR 631.
9.2 Applicability of Indian Evidence Act, 1872
Section 90 of the Indian Evidence Act, 1872, applies to Wills as to other

documents and the court may draw the presumption under it in deciding
whether the Will has been properly attested or not. In Ittianam v. Cherichi alias
Padmini, 2010 (3) KLT 447 (SC), it has been held by the Supreme Court that in
the absence of contrary intention in the Will, description of properties in the Will
shall be deemed to refer to and include property answering that description at
the death of testator. Section 90 uses the legal fiction 'deemed' and that is used
with the specific purpose of raising a presumption against intestacy. The word
'comprise' in section 90 will obviously mean 'to include, embrace, to comprehend
compendiously, to contain, to consist of, to extend, cover'. The Will is dated 8-5-
1967, sale deed is registered on 8-5-1967, execution of the sale deed is dated
2-5-1967, hence the property reverts back to the date of execution under
section 47 of the Registration Act to the effect that title passes retrospectively
with effect from the date of execution and not from the date of registration as
per accepted legal principles whereas the testator died on 20-7-1971. Therefore,
the testator had acquired full title over the property much before his death. The
presumption mentioned in section 90 of the Indian Evidence Act is discretionary
and not obligatory but where the court chooses to make the presumption no
further proof of the facts is necessary under section 69 of the said Act.
Therefore, the party propounding a Will or otherwise making a claim under a Will
is no doubt seeking to prove a document and, in deciding how it is to be proved
one must inevitably refer to the statutory provisions which govern the proof of
documents. Sections 67 and 68 of the Evidence Act, 1872, are relevant for this
purpose. These provisions prescribe the requirements and the nature of proof
which must be satisfied by the party who relies on a document in a court of law.
Requirements of proving a Will as per sections 67 and 68 of Evidence Act, 1872:
1. Signature of executant of Will be proved to be in his handwriting. For

such purpose, opinions of experts and persons acquainted with the
handwriting of the concerned person, relevant as per sections 45 and 47
of the Evidence Act be obtained. At least one attesting witness be called
for proving its execution.
2. Will set up by the propounder be proved to be the last Will of the

testator. A second Will, disposing of whole estate, revokes a former
disposition.
3. It is to be proved that the testator executed the Will in a sound and

disposing state of mind.
In a case, Will was executed by testator originally in favour of plaintiff but later
on the testator executed another Will, cancelling the former Will. Plaintiff was
one of the attestors of later Will. Will was proved to have been executed in a
sound and disposing state of mind. Plea of the plaintiff that he subscribed his
signature without knowing its contents was held not believable as he was not
illiterate and was wordly wise. Reason stated for executing second Will in favour
of first defendant was held that plaintiff-adopted son did not render service to
testatrix subsequent to execution of Will in his favour and that first defendant
was rendering service to her. These facts were not disproved. Presence of first
defendant and his father at the time of registration of document was held not a
suspicious circumstance as first defendant was looking after her. Court held the
requirements of proving a Will was satisfied and Will was a genuine document;
Challa Vcnkata Sitaramanjaneya Sastry v. Chitta Poornachandra Rao, 2004 (3)
ALT 492 (DB).
Moreover, sections 59 and 63 of the Indian Succession Act, 1925, are also
relevant. The fact as to whether the Will set up by the propounder is proved to
be the last Will of the testator has to be decided in the light of these provisions.
Has the testator signed the Will? Did he understand the nature and effect of the
dispositions in the Will? Did he put his signature to the Will knowing what it
contained? Stated broadly, it is the decision of these questions which determines
the nature of the finding on the question of the proof of Wills. It would prima
facie be true to say that the Will has to be proved like any other document
except as to the special requirements of attestation prescribed by section 63 of
the Indian Succession Act, 1925. As in the case of proof of other documents so
in the case of proof of Wills, no golden scale can be used. Normally, common
sense and satisfaction with the general application of laws are taken into
consideration in such matters.
The claimant will be bound to establish by satisfactory evidence that the Will was
signed by the testator, that the testator at the relevant time was in a sound and
disposing state of mind, that he understood the nature and effect of the
dispositions and put his signature to the document on his own free Will.
Ordinarily, when the evidence adduced in support of the Will is disinterested,
satisfactory, and sufficient to prove the sound and disposing state of the
testator's mind and his signature as required by law, it is presumed that the Will
is genuine. Ordinarily, the mode of proving a Will does not differ from that of
proving any other document except as to the special requirement of attestation
prescribed in the case of a Will by section 63 of the
Indian Succession Act, 1925. The onus of proving the Will is on the propounder
and in the absence of suspicious circumstances surrounding the execution of the
Will, proof of testamentary capacity and the signature of the testator as required
by law is sufficient to discharge the onus. Therefore, when the evidence in
support of the Will is disinterested, satisfactory and sufficient to prove the sound
and disposing state of mind of the testator and his signature as required by law,
the courts would be justified in making a finding in favour of the propounder.
When however, there are suspicious circumstances such that suggest that the
alleged Will is unnatural, improbable or unfair, the onus is on the propounder to
explain them to the satisfaction of the court. The ultimate test is the balance of
probabilities as it is very well recognised that 'as in the case of proof of other
documents so in the case of proof of Wills, it would be ideal to expect proof with
mathematical certainity. Thus, the test to be applied would be the usual test of
the satisfaction of the prudent mind in such matters.
When there are suspicious circumstances about execution of a Will, viz., the
signature of the testator may be very shaky and doubtful and evidence in
support of the propounder's case that the signature in question is the signature
of the testator may not remove the doubt created by the appearance of the
signature; the condition of the testator's mind may appear to be very feeble and
debilitated; and evidence adduced may not succeed in removing the legitimate
doubt as to the mental capacity of the testator; the dispositions made in the Will
may appear to be unnatural, improbable or unfair in the light of relevant
circumstances; or, the Will may otherwise indicate that the said dispositions may
not be the result of the testator's free Will and mind, the Court would naturally
expect that all legitimate suspicions should be completely removed before the
document is accepted as the last Will of the testator.
In S.R. Srinivasa v. S. Padmavathamma, JT 2010 (4) SC 296 it has been held by

the Supreme Court that the immovable property was owned by 'P'. 'P' had four
children namely; 'L', 'K', 'S' and 'I'. 'S' dies issueless. 'I' has been alleged to be
the second wife of 'C but 'I' also dies issueless. 'K' also dies issueless. 'C was
having six children from his first wife and one of them has been alleged to be
'SP'. At the time of death 'P' was living with 'I' his daughter. 'I' continued to be
in possession of the property after the death of 'P' and 'SP' came into possession
of the property after the death of 'I' propounding a 'Will' duly executed and
registered by 'P' in favour of 'I' claiming preference over 'L'. The 'L' initiated legal
proceedings by filing a suit against the 'SP' alleging that the Will with the 'SP' is
not a valid document. The burden of proving the Will to be a genuine one was on
the propounder of the same i.e., 'SP'. But none of the attesting witnesses was
examined. The scribe proved his signature on the Will only. The plea that the
Will was admitted in other proceedings but there was no admission about the
legality and genuineness of the Will. Several suspicious circumstances, including
participation of sole beneficiary in execution of the Will including her presence at
the time when the Will was written and presented for registration and even the
description of property was not given and there is no convincing reason as to
why the other LRs of 'P' have been excluded from the inheritance. Further, the
court observed that in case the Will is held not to be genuine, the property
would be inherited by 'L' as per scheme of section 15(2) read with section 16 of
the Succession Act. The scheme of the provisions of the Act is that in case of a
female dying intestate without leaving son, daughter or children of a pre-
deceased son or daughter, her property would devolve upon the source from
which he/she had inherited meaning thereby that if it is inherited by her from
her husband or father-in-law, it would devolve upon the heirs of her husband
and in case she had inherited the property from her mother or father, it would
not devolve upon the other heirs, but upon the heirs of her father and neither
her husband nor his heirs would get such property but it would revert back to
the heirs of her father. It was, therefore, for 'SP' to prove that the Will was duly
executed and proved to be genuine. In such cases, an adversary proceeding
becomes a matter of the court's conscious and then the true question which
arises for consideration of the court is whether the evidence led by the
propounder of the Will is such as to satisfy the conscious of the court that the
Will was duly executed by the testator. As the propounder of the Will has failed
to prove the execution and registration of the Will as per requirements of law,
the Will stands not proved. Appeal of 'L' is allowed.
The presumption can also arise when it is shown that the propounder has taken
an active part in the execution of the Will and has received substantial benefit
under it, that itself is generally treated as a suspicious circumstance attending
the execution of the Will and the propounder is required to remove the said
suspicion by clear and satisfactory evidence. In one case, application for probate
was filed. Will did not appear to be natural as properly was bequeathed on
propounder to the exclusion of children of testatrix and testatrix being an aged
lady of 75 years. There was noting by typist that he typed Will on instructions of
testatrix though she was in hospital at the time of execution. Typist was not
examined to explain his notings. Disputed Will contained thumb impression of
testatrix though she could sign. Propounder took active part in execution of Will.
However, propounder abstained from entering witness box to explain suspicious
circumstances. Such Will was held liable to be set aside; Vijay Kumar Banerjee
v. Arun Kumar Chakravarty, MANU/UP/0599/2003 : AIR 2004 All 29.
In Balathandayutham v. Ezhilarasan, 2010 (3) Supreme 130 it has been held by
the Supreme Court that when a Will is surrounded by suspicious circumstances,
the person propounding the Will has a very heavy burden to discharge and
unless it is satisfactorily discharged, Courts will be reluctant to treat document
as last Will of testator. The facts of the case are that the testator had three sons
(one appellant and one respondent), one another son; two daughters and one
wife. The testator executed a Will, registered on 25-9-1972 bequeathing his
properties in favour of his two sons (one respondent), two daughters giving his
wife life interest. No properly was bequeathed in favour of his son (appellant) on
the ground that after education, he married another woman belonging to some
other caste without the consent of parents and staying apart showing no interest
in the family members. The testator died on 23-5-1980. The brother
(respondent) was in exclusive possession of the property. The appellant (son)
tried to disturb the possession of the respondent (son) over the property with
the help of anti social elements for which the respondent (son) filed a suit in
which the appellant took stand that the Will dated 25-9-1972 was not genuine
and the same has been revoked by another Will dated 25-4-1980 and another
Will dated 2-5-1980 was executed and registered by the testator. Appellant
claimed his right on the basis of Will dated 2-5-1980. The stand of the
respondents is that the Will dated 25-4-1980 and 2-5-1980 both are fabricated
as at the relevant time the testator was bed-ridden and did not have capacity to
execute any Wills and he died within a few days on 23-5-1980. The trial court
dismissed the suit of the respondents upholding the contention of the appellant.
However, the appellate court allowed the appeal and decreed the suit of the
respondent thereby holding that the existence of the Will dated 25-9-1972 has
been admitted by both the parties and the case of the appellant is that the same
has been revoked but the subsequent Will dated 25-4-1980 is an unregistered
Will and both the subsequent Wills were not proved and are surrounded by
suspicious circumstances. The High Court upheld the findings of the appellate
court holding that the Wills dated 25-4-1980 and 2-5-1980 have not been
proved as per requirement of sections 68 and 69 of the Indian Evidence Act.
Attestors of these subsequent Wills were strangers to the family and these Wills
surfaced only when the appellant gave his written statement in 1994 in the suit
filed by the respondents. The stand of the respondents is that the testator went
to a temple to attend a function from where the appellant had taken him to
Cuddalore and as and when the respondent came to know, he brought the
testator back to his house at Vellupuram where the testator was staying all
these years and ultimately died. The Supreme Court also affirmed the findings of
the High Court and dismissed the appeal.

10
THE EXECUTOR
SYNOPSIS
10.1 Appointment of an Executor
10.2 Who can be an Executor
10.3 Criteria for Selection of an Executor
10.4 Administrator
The executor is the most important person in the Will. 'Executor' is defined in
the Indian Succession Act, 1925, as a person to whom the execution of the last
Will of a deceased person, is by the testator's appointment confided. An
executor is charged with the duty and conferred with the power to carry out the
directions contained in the Will. He has to collect and realise the estate of the
deceased, pay his debts and distribute the legacies.
The executor shall file the petition for obtaining probate of the Will. The court
shall grant probate only to an executor who has been named in the Will.
10.1 Appointment of an Executor
The testator must choose a person in whom he has full confidence and who is
capable of and willing to act as an executor. A person who has been named as
an executor by a Will is not bound to become an executor and until he acts as
such or expressly or clearly accepts such position, he cannot become an
executor. It is not necessary to appoint only a single executor. Similarly, the
testator can name an alternative executor if the first-named executor declines or
is unable to act as executor for any reason whatsoever. The executor may also
be a beneficiary under the terms of the Will. The testator may fix the
remuneration for the executor for his services.
10.2 Who can be an Executor
All persons capable of executing a Will can be executors. Even a minor can be
appointed as an executor but probate cannot be granted to the minor until he
attains majority. In the meanwhile, the legal guardian of the minor can obtain
letter of administration with the Will annexed.
The executor must be a person of confidence. He is the legal representative for

all purposes of a deceased person, and all the property of the deceased person
vests in him.
Disabled persons cannot be appointed as executors. A firm of solicitors can also

be appointed an executor. A company or trust may be appointed as executor
either individually or jointly with the other, provided the memorandum of such
company contains an express clause permitting it to accept the appointment of
an executor. Even a bank may be appointed to act as a sole executor of a Will.
10.3 Criteria for Selection of an Executor
(a) The executor should be younger than testator in age so that there is a
greater possibility of his outliving or surviving the testator.
(b) He should not be a minor.
(c) He should preferably be from the same city or nearby place because that will
facilitate the process of obtaining probate from the court.
(d) The executor should be known to beneficiaries and should be their well-
wisher.
(e) He should be honest, faithful and a man of integrity.
Therefore, the executor should be very carefully selected.
10.4 Administrator
In case the deceased has not appointed an executor then the court shall appoint
one. Also in case the executor is incapable of or refuses to act or has
predeceased the testator or the executor dies after having proved the Will but
before administering all the estates of the deceased, the court shall appoint an
administrator at the instance of interested person or persons.


11
WILL ON VIDEO FILM
SYNOPSIS
11.1 Procedure to be followed for Video Film.--
The time is changing very fast. Modern era is known as an electronic era. Fifty
years ago finalisation of any contract over teleprinter, telex, fax or phone was
unheard of. The seal or stamp of the Posts and Telegraph Department was must
to prove that the letter was sent to the party. Initially, even the courts were not
willing to accept the use of fax and phones for certain purposes. But now they
have accepted the utility of the modern modes of communication. Similarly in
the field of evidence, the video film has brought about a revolutionary change. If
it is handled and used properly, it can provide foolproof evidence and thereby
minimise the disputes. Now claims and counter-claims can be settled with the
help of video films without much hassles. However, abundant care and caution
must be taken to ensure that video films are not doctored to twist and turn the
proof in favour of interested parties.
11.1 Procedure to be followed for Video Film.--
(i) Make sure that the video stays on without break from beginning to the end.
Use natural light as some times artificial light gets too hot.
(ii) The Will should be read and rehearsed by the testator before going for the
video filming.
(iii) Video can be zoomed and it should be placed at a distance whereon full tele-
photo of a page should be visible so that making of signatures can be seen, and
on full wide angle the testator, the two witnesses and the document should also
be visible. While it is being read out, the zoom lense should be half way, quite
like a news reader in the TV. The testator should just remember that he is a
news reader for that day.
(iv) Once the video is fixed on, the testator should speak the words: I am so and
so, I have now to go for major surgery. Just in case I do not survive, I want to
make a Will. In order to avoid dispute, 1 have decided to have the making of
this Will recorded on video film. I considered the matter, sought legal opinion,
prepared the draft and now I have finalised the manuscript. I will first read it
out.
(v) The testator should now pick up the manuscript and start reading the same
at a somewhat slow speed. (The rule is that a news reader reads at 11/2 times
less than normal reading speed).
(vi) After the testator has read out the entire Will, he should say: I am going to
sign it', and he should sign it on each page. At this point the camera should be
zoomed on telephoto. The zooming should be done at slow speed.
(vii) After the testator has signed all the pages, the camera should be brought
back to full wide angle and he should ask the witnesses to attest the Will. The
witnesses will then sign one by one and write their addresses. They need to do
so on the last page but it is advisable that they put their signatures on each
page as well, although technically that is not necessary.
(viii) The testator should then thank the witnesses. He should then speak before
the camera looking into the lens "I have made the Will, I have signed it, and it
has been attested that, this is my last Will". He can then wish all the best to
every one.
(ix) Care should be taken not to leave the Will with the video cameraman.
In Sayar Kumari v. State, 2009 VIII AD (Del) 696, the petition was for grant of probate
under section 222 of Indian Succession Act, 1925 of Will dated 5-1-1985, executed by
Smt. Bhanwari Devi w/o Late Shri Johri Mal Bengani. Shri Sagar Mal was their only son
and Shri Amrao Singh was Sagar Mal's only adopted son i.e., testatrix grandson.
Petitioner Sayar Kumari was Amrao Singh's wife, Meeta was daughter of Amrao Singh.
In the East Will mention was made of the fact that Sagar Mal lived with Sushila Devi
and Sanjay Bengani also lived with them; that Sagar Mal had been living separately for
many years and only Bhanwari, Sayar Kumari and Amrao Singh looked after the
testatrix. In the last Will the testatrix stated that she had given plenty to Sagar Mal of
her free Will and he also took forcibly from her. She does not wish to give him anything.
Therefore, after her, Sagar Mal have no right over her property. In terms of the said
last Will Rs. 1,25,000 in cash was to be given to Jain Vishwa Bharti, the jewellery
divided equally between Sayar Kumari and Meeta. The Kashmere Gate property and any
other money or property whatever there be, were to be given to Amrao Singh. The
petitioner Sayar Kumari was named to be Executor.
Last Will dated 5-1-1985 was a video cassette recording by the testatrix duly attested
by the witnesses. The objector Sagar Mal raised objection "I do not know the person
who read out the alleged Will to the lady, my mother. She used to sign in Hindi.
Signatures on the Will are not of my mother. I do not accept that my mother put thumb
mark on the Will. But Shri Sagar Mal did not dispute the identity of his mother Smt.
Bhanwari Devi as appearing in the video film. He, however, denied her signatures or
thumb marks on both the prior dated 2-8-1983 and said last Will dated 5-1-1985.
Cross-examination of PW1 did not elicit anything significant for the Objector. Objector in
his statement had admitted that the lady seen in the video film was his mother. PW-2
being Doctor Physician and attesting witness has certified that the testatrix was of a
sound health and mind at the time of execution of the Will and whole process of
execution and attestation of Will was recorded on video.
The court observed that there are no suspicious circumstances surrounding the last Will.
Also in the prior Will the Objector has not been given any share of her estate. The prior
Will was preceded by a public notice issued by the testatrix announcing that she is
displeased with the behaviour of her son Sagar Mal Bengani. The court observed that
although the Information Technology Act, 2000 (IT Act) was not in operation when the
video recording was made of the execution and attestation of the last Will, the evidence
by way of video recording is admissible for proving the Will in question subject to
compliance with the requirement of section 65B of the Evidence Act. The Supreme Court
has in State of Maharashtra v. Prafull B. Desai, MANU/SC/0268/2003 : AIR 2003 SC
2053: 2003 Cr LJ 2033: 2003 AIR SCW 1885: 2003 (2) Crimes 237: JT (2003) 3 SC
382: MANU/SC/0268/2003: (2003) 4 SCC 601: 2003 (3) SCR 244: 2003 (3) SCALE
554: 2003 SCC (Cri) 815: 2003 (3) Supreme 19: 2003 (2) UJ (SC) 769, recognized in
principle, although in the context of a trial, that evidence by way of video recording is
admissible. This has been followed also in Sube Singh v. State of
Haryana, MANU/SC/0821/2006 : AIR 2006 SC 1117: 2006 Cr LJ 1242: 2006 AIR SCW
779: ILR (Ker) 2006 (2) SC 411: 2006 MANU SC 821: MANU/SC/0821/2006 : (2006) 3
SCC 178: 2006 (3) SCJ 754: 2006 SC Cr R 841: 2006 (2) SCALE 161: 2006 (2)
Supreme 140: 2006 (1) UC 685; Rajendra Singh Rana v. Swami Prasad
Maurya, MANU/SC/0993/2007 : AIR 2007 SC 1305: 2007 AIR SCW 1455: (2007) 4 SCC
270: 2007 (3) SCALE 64: 2007 (2) Supreme 127. The petition is allowed. Probate is
issued in favour of Executor/Petitioner.

12
REGISTRATION OF A WILL
SYNOPSIS
12.1 Disadvantages
12.2 Procedure for Registration of a Will
12.3 A Will can be Deposited with the Registrar in a Cover
Registration of a Will is purely an optional matter. It is not compulsory at all. No

inference ran be drawn by the court or any authority about the genuineness of a Will on
the ground of its non-registration. Nor a Will can be accepted as genuine by courts even
though it has been registered.
Q. In what circumstances, an unregistered Will would be a valid Will?
Ans. As per section 63 of Indian Succession Act, 1925, conscience of Court must
be satisfied that Will in question was executed and attested in manner required
under Indian Succession Act and it was produce of free volition of executant.
Mere fact that deceased died in suspicious circumstances two years after
execution of the Will, cannot be suspicious circumstance attending due execution
of Will. Evidence on record suggested that deceased put his signatures on Will of
his own free will and signed it in presence of two persons in whom he had full
and absolute faith. In such circumstances the Will was held to be a valid one and
there was no scope of interference with findings of the lower court that Will
proved to be the last Will of deceased. Also uneven distribution of assets
amongst children by itself cannot be taken as a circumstance causing suspicion
surrounding execution of Will; Kewal Krishan Mayor v. Kailash Chand Mayor, 95
(2002) DLT 115 (DB); Sundaresa Pai v. Sumangala T. Pai, 2002 (1) KLT 32
(SC).
Section 7(1) of the Registration Act, 1908, provides that the State Government shall
establish in every district an office of the Registrar and in every sub-District an Office of
the Sub-Registrar for registering various transaction documents and conveyances.
There are many advantages of the registration of a Will. These are-
(a) The Will cannot ordinarily be tampered with, destroyed, mutilated, lost or
stolen.
(b) It is kept in the safe custody at the Office of the Registrar.
(c) Nobody can examine the Will and copy the contents without the express
permission in writing until the death of the testator because section 57(2) of the
Registration Act, 1908, provides that the certified copy of a Will can be given to
the testator or his agent. It is only after the death of the testator of the Will that
a certified copy can be given to any person applying for it and producing the
death certificate of the testator issued by the competent authority.
(d) If the Will is registered and uncontested, it may be possible to get the
leasehold property mutated in the name of the legal heirs without obtaining a
probate of the Will.
In Tajinder Singh v. Ram Murti, Lamberdar, 2010 (90) AIC 678, the Himachal Pradesh
High Court has held that mere registration of Will is not sufficient to hold that a valid
Will was executed. The brief facts involved are that one Sohan Singh was the original
owner of the land. He died on 13-12-1993. Mutation was entered in favour of Tajinder
Singh and Harinder Singh on the basis of a Registered Will executed on 3-6-1987. The
legal heirs of Gurnam Singh, pre-deceased son of Sohan Singh claimed that right in the
property alleging that the Will in question is a forged document. According to Tajinder
Singh & Harinder Singh, Gurnam Singh was not the son of Sohan Singh. They alleged
that Sohan Singh was residing with their father Mohinder Singh as the Will was
executed by him in their favour. The court observed that Will is not genuine as the said
Tajinder Singh and Harinder Singh have tailed to explain the various suspicious
circumstances and held that Gurnam Singh was son of Sohan Singh and these
observations were confirmed by the District Judge in appeal. The High Court in appeal
observed that the averment of Tajinder Singh and Harinder Singh that Gurnam Singh
was not son of Sohan Singh is wrong as the documents produced in evidence by
Tajinder Singh & Harinder Singh (as defendants in the civil suit) reveal that Gurnam
Singh was son of Sohan Singh. In fact the documents show that Sohan Singh had
executed a Will Ext.P-3 in favour of Gurnam Singh and this fact is admitted by the
delendants. The said Ext.P-3 Will was cancelled vide Ext.PW-10/ A by Sohan Singh on
28-1-1986 and thereafter he executed a Will Ext. D-5 on the basis of which defendants
claimed to have become owner of the suit property. Even the mutation order dated 25-
4-1994 reveal that Sohan Singh had a wife Kashmiro Devi and from this wed-lock a son
Gurnam Singh was born. The court observed that obviously there are various
discrepancies in the statements of witnesses produced by the defendants before the
civil court and contrary. No doubt the stamped endorsements on the rear of the Will
indicates that the Will was read over and explained to Sohan Singh by the Registrar but
the Registrar was not examined by the propounder of the Will. Accordingly appeal was
dismissed.
12.1 Disadvantages.--
There are, however, many disadvantages of registration. In case of unregistered

Will, revocation of the Will is very simple but revocation of a registered Will is
very cumbersome, tiring and time-consuming job. The second disadvantage is
that after revocation of the first registered Will, the subsequent Will should also
be registered.
12.2 Procedure for Registration of a Will.--
The Will should be got registered at the Office of the Sub-Registrar. The selected
witnesses should also go with the testator for attesting the Will. It is always
advisable not to take the help of the professional witnesses. If the testator
cannot go upto the Registrar's Office owing to physical infirmity, then the
Registrar shall, on request, himself visit the residence or the hospital of the
testator. If the testator is in jail or if the testator is a Muslim Pardanashin
woman, then also the Registrar shall go to the place of the testator.
No stamp duty is chargeable on a Will. A. Will can be registered by the testator

in his life-time or by the executor or legatee after the testator's death.
12.3 A Will can be Deposited with the Registrar in a Cover.--
After a Will has been executed in the manner described above, it may be
deposited in some safe custody, such as with a banker or a solicitor, or a
lawyer. Under the Indian Registration Act, 1908, a Registrar also has authority
to receive and to keep in deposit Wilts presented to him for that purpose. A
testator may, either personally or by a duly authorised agent, deposit with any
Registrar his Will in a sealed cover bearing the name of the testator and that of
his agent, if any, and a statement of the nature of the document. On receiving
the cover the Registrar, if he is satisfied that the person presenting the same
for deposit is either the testator or his agent, must keep the sealed cover in his
custody.
If the testator wishes to withdraw the cover, he may apply either personally or
by a duly authorized agent to the Registrar for return of the same; and the
Registrar, if he is satisfied that the applicant is the testator or his agent, must
deliver the cover accordingly.
After the death of the testator any person may apply to the Registrar to open
the cover; and if the Registrar is satisfied that the testator is dead, he must
open the cover in the presence of the applicant and cause a copy of the Will to
be made in his prescribed book at the applicant's expense; but he must hold
the original in his custody till ordered by a competent court to produce the Will
before it. These rules apply equally to codicils.

13
SPECIAL RULES FOR INTERPRETATION OF WILLS
SYNOPSIS
13.1 High Court can Give Directions to an Executor or an Administrator
13.2Determination of Object or Subject of a Will
13.3 Legatee's Name can be Corrected
13.4 Circumstances when words may be Supplied
13.5 Restriction of Erroneous Particulars
13.6 When any Part of Description may not be Rejected
13.7 Admissibility of Extrinsic Evidence
13.8 Meaning of any Clause to be Collected from the Entire Will
13.9 When words may be Understood in Restricted Sense
13.10 Testator's Intention to be Effectuated
13.11 Interpretation of Words
13.12 The Latter of the Two Clauses will Prevail
13.13 Will Void for Uncertainty

13.14 Words Describing Subject Refer to Property
13.15Power of Appointment by General Bequest
13.16 Object of Power in Default of Appointment
13.17 Bequest to Heirs
13.18 Bequest to Representative, etc.
13.19 Bequest without Words of Limitation
13.20 Bequest in Alternative
13.21 Effect of Words Describing a Clause Added to a Bequest to a Person
13.22 Bequest to Class of Persons under General Description
13.23Relationship means only Legitimate Relatives
13.24 Two Bequests to Same Person
13.25 Constitution of Residuary Legatee
13.26 Time of Vesting a Legacy in General Terms
13.27 In what Case Legacy Lapses
13.28 When One of the Two Joint Legatees Dies before Testator
13.29Bequest to Testator's Child does not Lapse
13.30 Survivorship in Case of Bequest to Described Class
An executor or an administrator is duty bound to administer and to manage the estate

of the testator according to his or her wishes and directions as contained in the Will. The
intention of the testator shall have to be ascertained by an examination of the Will as a
whole. It is not the function of an executor, or of an administrator, to import his own
opinion as to what the deceased should or should not have done. His duty is to carry
out the wishes of the testator on a correct interpretation of the Will.
13.1 High Court can Give Directions to an Executor or an Administrator.--
In case of doubt, the executor or administrator can always seek any general or
special directions from the High Court by an application made for that purpose
under section 302 of the Indian Succession Act, 1925. When acting bona fide
according to the advice or the direction of the court, an executor or an
administrator would be protected against all claims made on the alleged ground
that his action was not justified by the terms of the Will, or the circumstances of
the case. Thus, delay in completing administration of a Will within stipulated or
reasonable period will not itself be a ground for act of self mala fide or guilty of
misconduct or devastate in the sense of wasting the assets.
Precise rules for the construction of Wills have been laid down in Chapter VI of
the Indian Succession Act, 1925, for the guidance of courts and other
concerned. These rules, however, have no application where the language used
in the Will is clear and unambiguous and is applicable to existing facts. They are
to be resorted to only if there is difficulty or doubt in ascertaining the intention
of the deceased. These rules, it may be observed, are not affected by the rules
contained in sections 91 to 99 of the Indian
Evidence Act, 1872, for the interpretation of documents, vide section 100 of that
Act, which provides that nothing contained in those sections shall be taken to
affect the provisions of the Indian Succession Act. There is, however, good deal
in common in these two sets of rules, and the principal aim of both is identical,
i.e., to ascertain the intention of the parlies, in the case of deeds, and of the
testator, in the case of a Will. The important rules as given here, cover a wide
ground and will be found to meet practically all conceivable contingencies. They
are based on the long experience of eminent jurists and lawyers familiar with the
circumstances and requirements of this country; and it is as well that they are of
a comprehensive character as sometimes greater difficulty is experienced in
construing testamentary documents than in the case of non-testamentary
documents, because in the latter case, the parties are often in a position to
assist the courts, whereas, the necessity for interpreting a Will arises after the
death of the testator, whose intention, as disclosed by the Will, has to be
ascertained without his personal assistance.
13.2 Determination of Object or Subject of a Will.--
Section 75 of the Indian Succession Act, 1925, provides that when there be a
reasonable doubt as to the person or the property intended to be denoted by
any words used in a Will, an enquiry must be made into every material fact
relating to the persons who claim to be interested under such Will, the property
which is claimed as the subject of disposition, the circumstances of the testator
and of his family, and into every fact, a knowledge of which may conduce to the
right application of the words which the testator has used; and for these
purposes extrinsic evidence can be taken into consideration.
13.3 Legatee's Name can be Corrected.--
An error in the name or description of the legatee does not prevent the legacy
from taking effect if the words used in the Will to designate or describe the
legatee or a class of legatees are sufficiently clear and indicative of the intention
of the testator as to the person or persons to be benefited by the bequest. It is
permissible to correct the name of the legatee by reference to his description in
the Will, and similarly, to correct the description of a legatee by reference to his
name as used in the Will. If, therefore, the identity of the person or persons
intended to be benefited by a bequest in the Will can reasonably be ascertained,
either by their description or by their names in the Will, the legacy must be
given effect to, even if there be a mistake either in the descriptions or in the
names of the legatees.
13.4 Circumstances when words may be Supplied.--
Sometimes it is permissible to supply material words when the meaning of a

bequest, or other disposition contained in a Will, is not clear or fully expressed in
the Will, owing to the omission of a word or words. The omission, in such a case,
is attributable to accident and can be supplied by a reference to the context. It is
well settled that the instrument should be construed as a whole and the
intention is to be spelt out from the entire document. When the instrument
cannot be given reasonable meaning or if the meaning of a particular word
results in absurd conclusion or if no legal effect can be given to a particular
clause, the court has wide power to construe the document in such a way that a
reasonable meaning could be given to the whole document, if necessary by
adding a particular word or words which has or have been omitted. The
illustration to section 77 of the Indian Succession Act, 1925, reads as under:
A testator gives legacy of "five hundred" to his daughter A, and a legacy of five
hundred rupees to his daughter B. A will take legacy of five hundred rupees.
13.5Restriction of Erroneous Particulars.--
When the thing which the testator intended to bequeath can be sufficiently
identified from the description of it given in the Will, but some parts of the
description so given do not apply to that thing, then these parts must be
rejected as erroneous, and the bequest of the thing should be given effect to as
valid, thus, ignoring that part of the description which may be inapplicable to the
thing.
13.6 When any Part of Description may not be Rejected.--
If there is any thing or things which might be the subject of the bequest, but all
the descriptive circumstances of the thing or things bequeathed, as contained in
the Will, apply only to one or some of such things, and some of the
circumstances do not apply to the other things, then the bequest must be
deemed to be limited only to the thing or things to which all the descriptive
circumstances apply; and, in such a case it is not permissible to reject any of the
descriptive circumstances as erroneous, so as to include in the bequest the
things to which all the descriptive circumstances do not apply. For instance, if
there is a conflict in the headnote and the statement in the body of the deed
regarding description of properties, it is the latter that prevails.
13.7 Admissibility of Extrinsic Evidence.--
Where the expressions used in a Will are unambiguous and clear, but they are
capable of application to more things than one or in more senses than one, and
the circumstances show that the testator intended them to apply only to one
thing or only in one sense, in each such case extrinsic evidence may be given to
show to what thing or in what sense those expressions were intended to apply;
and the expressions may be applied accordingly. But where there is patent
ambiguity or deficiency, no extrinsic evidence can be given as to the intention of
the testator. Ambiguity means an expression which is capable of more than one
meaning; and it is patent, if it exhibits uncertainty or inconsistency on the face
of the Will. Such an uncertainty or inconsistency cannot be explained by any
amount of extrinsic evidence, because expressions which on the face of the Will
are self-contradictory are incapable of being reconciled without doing violence to
one of them.
13.8 Meaning of any Clause to be Collected from the Entire Will.--
It is a cardinal rule of the interpretation of Wills that the Will must be read as a
whole and the meaning of any clause in it must be collected by a study of the
entire instrument; no part of a Will is to be construed independently of the
others, and therefore, all its parts must be construed with reference to each
other.
13.9 When words may be Understood in Restricted Sense.--
A strict literal interpretation of the words used in a Will is not always necessary;
the main objective should be to determine the sense in which the testator has
used them. The meaning which the testator intended to ascribe to them may be
collected from the other words used in the Will. Accordingly, general words may
be understood in a restricted sense, or in a wider sense, as the testator meant
to use them in a restricted or in a wider sense, having regard to the context and
the other words used in the Will.
The Delhi High Court has also held that glaring instance of typing mistake cannot
be equated with material error. The fact is that one of the properties referred to
in schedule of properties did not describe same in accordance with Will, would
have no effect; Prem Prakash v. State, 118 (2005) DLT 681 (Del HC).
13.10 Testator's Intention to be Effectuated.--
The rule of the law is, if possible, not to make the Will or a bequest ineffective or
invalid, and therefore, if a clause in a Will is susceptible of two meanings
according to the one of which the Will has some effect, but according to the
other it can have no effect, the former, i.e., the one according to which the Will
has some effect, must be preferred. The intention of the testator should not be
set aside merely because it cannot be acted upon to the full extent; on the other
hand, if it can be acted upon only partially then effect should be given to it
accordingly and as far as possible. For instance, if A bequeathes two houses to
B, one of which is destroyed by fire before the death of A, B must be given that
house which still exists and the site of the house which has been destroyed. The
Supreme Court has held that in view of the provisions of section 74 of Indian
Succession Act the fundamental rule is to ascertain the intention of the testator
from the words used and for doing so, the court is entitled to put itself into the
arm-chair of the testator and also bound to bear in mind other matters than
merely the words used and the probability that the testator had/would have
used the words in a particular sense, by reading the Will as a whole with all its
provisions and ignoring none of them as redundant or contradictory, giving full
effect to every word used in a document as well as disposition contained in the
Will, unless the law prevents effect being given to it and in case of two
repugnant provisions, the first interest created is valid and the subsequent
interest cannot take effect; Navneet Lal v. Gokul, MANU/SC/0328/1975 : (1976)
1 SCC 630; Arun Kumar v. Shriniwas, 2003 (4) MPLJ 368
(SC): MANU/SC/0317/2003 : AIR 2003 SC 2528: (2003) 6 SCC 98: 2003 (4)
SCALE 145: 2003 (3) Supreme 422: 2003 (2) UC 1171: 2003 (2) UJ (SC) 977.
Also, the Supreme Court has held that as per section 87 of the Indian
Succession Act, 1925, intention of the testator as gathered from Will has to be
effectuated as far as possible, and as per section 211 of the Indian Succession
Act, 1925, the vesting of property bequeathed is under Will, meaning thereby
that the executor or administrator, as the case may be, of a deceased person, is
his legal representative for all purposes and as per section 213 of the Indian
Succession Act, no right as executor or legatee can be established in any Court
of Justice, unless a Court of competent jurisdiction in India has granted probate
of the Will; Commissioner, Jalandhar Division v. Mohan Krishan Abrol, 2004 (55)
ALR 474 (SC): 2004 (4) Cal HN 77: 2004 (2) CCC 124: JT (2004) 4 SC
139: MANU/SC/0300/2004 : (2004) 7 SCC 505: 2004 (4) SCALE 163: 2004 (1)
WLC (SC) CVL 691.
In another case, it has been clarified that the basic principle to be seen is
intention of testator. At times intention may be expressed in clear terms while at
other times, the intention has to be derived from reading of Will as a whole;
Madhu Kohli v. Suresh Khattar, 128 (2006) DLT 117 (Del HC).
In Rajesh Arora v. State, 2009 IV AD (Del) 235, the Delhi High Court has held
that the law is well-settled that the conscience of the Court must be satisfied
that the Will in question was not only executed and attested in the manner
required by the Indian Succession Act, 1925 but it should also be found that the
Will was the product of the free volition of the executant after knowing and
understanding the contents thereof.
13.11 Interpretation of Words.--
The law prefers a presumption in favour of uniformity in the meaning of

expressions used in a Will. Consequently, if the same words occur in different
parts of the same Will, it should be taken to have been used everywhere in the
same sense, unless a contrary intention appears from the context.
13.12 The Latter of the Two Clauses will Prevail.--
There may be cases where two clauses in a Will are so irreconcilable with each
other that they cannot possibly stand together. In such cases, the last clause
must be deemed to prevail and the earlier should be ignored. There is a
presumption in such cases that the latter clause was intended to supersede the
earlier clause. It would be observed that the rule relating to the interpretation of
deeds under similar circumstances is different.
13.13 Will Void for Uncertainty.--
A Will or bequest, which is vague and does not express any definite intention of
the testator, is deemed to be void for uncertainty. Such a Will or bequest is
inoperative and must, therefore, be rejected. Instances of blanks in a Will should
fall under this category.
13.14 Words Describing Subject Refer to Property.--
The description contained in the Will of property which is the subject of a gift
must, unless a contrary intention appears from the Will, be deemed to refer to
the property of the testator answering that description at the time of his death
and not at the time of the execution of the Will. A Will becomes operative at the
death of the testator, and till then he is entitled to deal with his property as he
likes, and therefore, there is a presumption that the testator intended to make a
bequest in respect of the property left by him at the time of his death.
13.15 Power of Appointment by General Bequest.--
Unless a contrary intention appears by the Will, bequest of the estate of the
testator shall be construed to include any property which he may have power to
appoint by Will to any object he may think proper, and shall be deemed to be
made in execution of such power; and a bequest of property described in a
general manner shall be construed to include any property to which such
description may extend, which he may have power to appoint by Will to any
object he may think proper, and shall operate as if made in execution of such
power. This rule will cover a case where A has been given a life-interest in
property under the Will of another person and the nomination of the person to
whom such property is to go after the termination of the life-interest of A has
been left to A by the Will. A general bequest of his property by A to B shall, in
the absence of a clear indication in his Will to the contrary, include the property
in which A had the life-interest.
13.16 Object of Power in Default of Appointment.--
Where property is bequeathed to or for the benefit of certain objects, but the
nomination or appointment of such objects is left to a specified person, or the
property is bequeathed for the benefit of certain objects in such proportions as a
specified person may appoint, but no provision is made in the Will as to the
disposal of the property in the event of failure of the specified person concerned
to make an appointment, then the property must belong to all the objects of the
power in equal shares. This rule applies to the bequeath, but the selection of the
objects, or the fixation of their shares, is left to another person.
13.17 Bequest to Heirs.--
If a bequest is made to the 'heirs' or 'right heirs' or 'relations' or 'nearest

relations' or 'family' or 'kindered' or 'nearest of kin' or next of kin' of a particular
person without any qualifying terms, and the class so designated forms the
direct and independent object of the bequest, the property bequeathed shall be
distributed as if it had belonged to such person and he had died intestate in
respect of it, leaving assets for the payment of his debts independently of such
property. Thus, when bequest is in favour of the heirs or right heirs or relations
or nearest relations or family or kindered or nearest of km or next of kin of the
testator, the property bequeathed is to be distributed as if it belongs to the
testator and he has died intestate.
13.18 Bequest to Representative, etc.--
The same rule applies where a bequest is made to the representative' or 'legal
representatives' or 'personal representatives' or 'executors or administrators' of
a particular person, and class so designated forms the direct and independent
object of the bequest. In this case also, the property bequeathed must be
distributed as if it had belonged to such person, and not to the testator, and he
had died intestate in respect of it. The observations made above in connection
with the rule relating to the distribution of a bequest among the heirs of a
person also apply to the class of persons mentioned in this rule.
13.19 Bequest without Words of Limitation.--
There is a presumption that a bequest of property comprises the whole interest

of the testator therein; and consequently, the legatee is entitled to the whole of
such interest, unless it appears from the Will that only a restricted or limited
interest was intended to be given to him.
13.20 Bequest in Alternative.--
Where property is bequeathed to a person with a bequest in the alternative to

another person or to a class of persons, then, if a contrary intention does not
appear by the Will, the legatee first named is entitled to the legacy if he is alive
at the time when it lakes effect; but if the person first named is dead, then the
person or class of persons named as legatees in the second branch of the
alternative bequest are entitled to take the legacy. This rule is self-explanatory.
It is illustrated by an instance of a legacy in favour of A or B. If A survives the
testator B takes nothing; but if A predeceases the testator, then the legacy goes
to B.
13.21 Effect of Words Describing a Clause Added to a Bequest to a Person.--
Where property is bequeathed to a person, and after the name of such person
words are added which describe a class of persons but do not denote them as
direct objects of a distinct and independent gift, such person is entitled to the
whole interest of the testator in the property, unless a contrary intention
appears by the Will. This rule, which is based on section 97 of the Indian
Succession Act, 1925, is not easy to follow. Two of the instances of the
applicability of this rule, as given in the section will illustrate the difficulty. It is
there stated that in the case of a bequest made to 'A and his children' or to 'A
and his descendants', A takes the whole interest which the testator had in the
property, but in the case of a bequest made to 'A and his brothers' A as well as
his brothers are jointly entitled to the legacy. The distinction seems to be
obscure: probable explanation might be that the children and the descendants of
a person ordinarily take an interest through him, while the brothers take
independently of him.
13.22 Bequest to Class of Persons under General Description.--
Where a bequest is made to a class of persons who are mentioned under a

general description only, no one to whom the words of the description are not
applicable in their ordinary sense is entitled to take the legacy. A bequest in
favour of 'heirs', 'issue', 'children' or 'grand-children' will fall under this rule. In
the ordinary sense-
(a) the word 'children' applies only to lineal descendants in the first
degree of the person whose 'children' are spoken of;
(b) the word 'grand-children' applies only to lineal descendants in the

second degree of the person whose 'grand-children' are spoken of;
(c) the words 'nephews' and 'nieces' apply only to children of brothers
and sisters;
(d) the words 'cousins' or 'first cousins', or 'cousins-german', apply only

to children of brothers or of sisters of the father or mother of the person
whose 'cousin' or 'first cousins', or 'cousins-german', are spoken of;
(c) the words 'first cousins once removed' only apply to children of
cousins-german, or to cousins-german of a parent of the person whose
'first cousins once removed' are spoken of;
(f) the 'second cousins' apply only to grand-children of brothers or of

sisters of the grand-father or grand-mother of the person whose 'second
cousins' are spoken of;
(g) the words 'issue' and 'descendants' apply to all lineal descendants
whatever of the person whose 'issue' or 'descendants' are spoken of.
In applying words expressive of collateral relationship there is no distinction

between relatives of full blood and relatives of half blood. All words expressive of
relationship apply equally to a child in the womb who is afterwards bom alive.
13.23 Relationship means only Legitimate Relatives.--
In the absence of any intimation to the contrary in a Will, the word "child", the
word "son", the word "daughter", or any words which expresses relationship, is
to be understood as denoting only a legitimate relative, or, where there is no
such legitimate relative, a person who, at the date of the Will, has acquired the
reputation of being such relative.
Therefore, in the case of a bequest of property to "my son", an illegitimate son

will take the property if there be no legitimate son of the testator existing at the
date of the Will, and the illegitimate son did then exist and had acquired the
reputation of being the testator's son.
13.24 Two Bequests to Same Person.--
Where a Will purports to make two bequests to the same person, a question
arises whether the testator intended to make the second bequest instead of or in
addition to the first. If there is nothing in the Will to indicate the intention of the
testator, the following rules apply in determining the construction to be put upon
the Will:-
(a) if the same specific thing is bequeathed twice to the same legatee in
the same Will and again the codicil, he is entitled to receive that specific
thing only;
(b) where one and the same Will or one and the same codicil purports to
make, in two places, a bequest to the same person of the same quantity
or amount of anything, he shall be entitled to one such legacy only;
(c) where two legacies of unequal amount are given to the same person
in the same Will, or in the same codicil, the legatee is entitled to both;
(d) where two legacies, whether equal or unequal in amount, are given to
the same legatee, one by a Will and the other by a codicil, or each by a
different codicil, the legatee is entitled to both legacies.
It must be noted that for the purposes of this rule, the word "Will" does not
include a codicil.
13.25 Constitution of Residuary Legatee.--
To constitute a person as a residuary legatee, it is not necessary that he should

be described as such: it is sufficient if words are used in the Will or a codicil
which show an intention on the part of the testator that the person designated
shall take the surplus or the residue of his property after the death of the
testator, i.e., property which has not otherwise been disposed of by the Will or a
codicil. A residuary legatee is entitled to all the property belonging to the
testator at the time of his death of which he has not made any other
testamentary disposition which is capable of taking effect. Therefore, a bequest
which fails or becomes ineffective for any reason whatsoever also goes to the
residuary legatee.
13.26 Time of Vesting a Legacy in General Terms.--
If a legacy is given in general terms without specifying the time when it is to be

paid, the legatee has a vested interest in it from the day of the death of the
testator, and even if he dies without having actually received it, the legacy
passes to his representatives as if it formed part of his estate. It is open to a
testator to provide by the Will or a codicil that the vesting of any legacy shall be
postponed for a specified period after his death, or that the legacy shall vest on
the happening of a specified event after his death. In such cases the legacy does
not vest in the legatee till the expiry of the specified time or the happening of
the event; and if in the meantime, (i.e., between the death of the testator and
the vesting of the legacy) the legatee dies, the property which is subject to the
legacy reverts to the residuary estate of the testator, unless the Will or the
codicil has made some other disposition of the same. If, however, no time is
mentioned in the Will or in a codicil for the vesting or payment of the legacy,
then it becomes the property of the legatee immediately on the death of the
testator, and is capable of being dealt with as such.
13.27 In what Case Legacy Lapses.--
If the legatee does not survive the testator, the legacy cannot take effect, it
lapses and forms part of the residue of the testator's property and goes to the
residuary legatee, unless it appears by the Will that the testator intended that it
should go to some other person on the failure of the interest of the legatee. In
order to entitle the representatives of the legatee to receive the legacy, it must
be proved by such representatives that the legatee survived the testator. Thus,
it cannot be said that the intention of the testator that a legacy shall not lapse
may be given effect only if the testator expressly directs that if the legatee dies
during his life-time the legacy shall go to some other person, and that intention
to exclude lapse cannot be inferred.
13.28 When One of the Two Joint Legatees Dies before Testator.--
If a legacy is given to two persons jointly and one of them dies before the
testator, the other legatee takes the whole legacy. Under this rule a legacy to
'A and B' goes to A, if B dies during the lifetime of the testator, and it goes to B
if A dies in the life-time of the testator. But, if a legacy is given to more than
one legatees, and the words used in the Will in making the bequest show that
the testator intended to give the legatee distinct shares of it, then, if any
legatee dies before the testator so much of the legacy as was intended for him
must fall into the residuary legacies. A legacy of money to A, B and C to be
equally divided among them falls under this rule. Where, however, a residuary
legacy is given in distinct shares to more than one legatee and one of the
legatees dies before the testator, the above rule is applicable with the
modification that the share of the deceased residuary legatee does not fall into
the residue of the testator's property, and therefore, does not go to the other
residuary legatees under the Will, but it goes to the heirs of the testators as if
he had died intestate in respect of such share.
13.29 Bequest to Testator's Child does not Lapse.--
Where a bequest has been made to any child or other lineal descendant of the
testator, and the legatee dies in the life-time of the testator, but any lineal
descendant of the deceased child or of the deceased lineal descendant, in whose
favour the bequest has been made, is alive at the time of the death of the
testator, then, unless a contrary intention appears from the Will, the bequest
does not lapse, but takes effect as if the death of the legatee had happened
immediately after the death of the testator. In other words, in such
circumstances, the legacy follows the estate of the deceased child or the
deceased lineal descendant and is inherited by the heirs of such child or
descendant, unless such child or descendant has made a bequest in respect of
such legacy or his estate generally, in which case it must be disposed of
according to his directions contained in his Will.
13.30Survivorship in Case of Bequest to Described Class.--
Where a bequest is made to one person for the benefit of another, the legacy
does not lapse by the death, during the testator's life-time, of the person to
whom the bequest is made, because the person really intended to be benefitted
by the bequest is alive, and the death of the person who was to act only as his
representative, etc., would not affect the ultimate objective of the legacy.
Where a bequest is made simply to a described class of persons, the thing

bequeathed goes only to such as are alive at the testator's death. And, if
property is bequeathed to a class of persons described as standing in a
particular degree of kindred to a specified individual, but their possession of it is
deferred until a time later than the death of the testator by reason of prior
bequest or otherwise, the property must, at the time when the persons
concerned become entitled to take possession of it, go to such of them as are
then alive, and to the representative of any of them who have died since the
death of the testator. This is another application of the rule that ordinarily the
vesting of a legacy takes place at the time of the death of the testator and that,
in such cases, the intervention of prior interest does not prevent the vesting of
the legacy, though the delivery of its possession is deferred. The normal rule is
that the date of death of the testator crystallises the classes of legatees and
those who come within the class and are capable of taking on the date obtain
the benefit. The subsequent extension of the class cannot diminise that benefit.
These rules, it will be seen, are of cardinal importance and should be carefully
studied by one who has to draft a Will, as a lapse on his part to properly
appreciate the significance of these rules may result in defeating the intentions
of the testator and in depriving persons of benefits which they were intended to
receive under the Will. However, it must be borne in mind that the rules of
interpretation of Wills as contained in sections 91, 92, 93, 94, 97 and 100 do not
apply to the Wills of Hindus, Buddhists, Sikhs and Jains.
In Ittianam v. Cherichi alias Padmini, 2010 (3) KLT 447 (SC), it has been held by
the Supreme Court that in the absence of contrary intention in the Will,
description of properties in the Will shall be deemed to refer to and include
property answering that description at the death of testator. Section 90 uses the
legal fiction 'deemed' and that is used with the specific purpose of raising a
presumption against intestacy. The word 'comprise' in section 90 will obviously
mean 'to include, embrace, to comprehend compendiously, to contain, to consist
of, to extend, cover'. The Will is dated 8-5-1967, sale deed is registered on 8-5-
1967, execution of the sale deed is dated 2-5-1967, hence the property reverts
back to the date of execution under section 47 of the Registration Act to the
effect that title passes retrospectively with effect from the date of execution and
not from the date of registration as per accepted legal principles whereas the
testator died on 20-7-1971. Therefore, the testator had acquired full title over
the property much before his death.

14
PROBATE AND LETTER OF ADMINISTRATION
SYNOPSIS
14.1 Persons Eligible for Grant of Probate
14.2 How to Get Probate
14.3 Proof of Death
14.4 Letter of Administration
Probate is a document issued under the seal and signature of Court Officer, viz., District
Judge or Registrar, certifying that a particular Will was proved on a certain date and
attaching a copy of the Will of which probate has been granted. A mere copy of the
grant without a copy of the Will attached thereto is not a probate.
A probate perfects the title of the executor and can only be granted to him. Probate of a
Will when granted establishes the Will from the death of the testator and renders valid
all intermediate acts of the executor as such. It is conclusive evidence of the validity,
and of due execution of the Will and of the testamentary capacity of the testator.
14.1 Persons Eligible for Grant of Probate.--
Probate can be granted only to the executor appointed by the Will. It may be
expressed or implied. The probate cannot be granted to a person who is a minor
or of unsound mind, nor to any association of individuals unless it is a company
which satisfies the conditions prescribed by rules made by the State Government
in this behalf. Probate is distinct from Succession Certificate. Probate is issued
by the court when a person dies testate, i.e., having made a Will and the
executor or the beneficiary, where no executor has been appointed, applies to
the court of competent jurisdiction for the grant of probate. It is an order issued
by the court in respect of a Will which certifies and upholds its genuineness. In
one case, the court has held that where executor/propounder of the Will has
proved the competence of the testator and execution of the Will in the manner
expected by law and has satisfied the conscience of the court by removing any
suspicions or unnatural circumstances, the Will is valid and genuine; P. Kabali v.
D. Velu, AIR 2003 NOC 57 (Mad).
In another case the Delhi High Court has held that Limitation Act would have no
application where an application is moved for grant of probate, as right to apply
for probate is recurring one; Kanwal Malhotra v. State, 125 (2005) DLT 281 (Del
HC).
This enables the executor (or the beneficiary) to lay his hands on the testator's
property after its grant.
In a case where a person has not made a Will, his legal heirs will have to apply
to the civil court for grant of Succession Certificate which will be given as per
applicable law of inheritance.
Unprobated Will cannot be the basis for establishing a right conferred therein to
the legatee or executor. It is essential to obtain a probate from the competent
court. An executor or legatee cannot establish his rights under the Will in a court
of law without obtaining probate. However, in another case, the court has held
that as per provisions of Succession Act, grant of probate or letters of
administration does not confer title to property. They merely enable
administration of estate of deceased. It is always open to person to dispute title
even through probate or letters of administration granted; D.D.A. v. Dr. K.K.
Srivastava, 109 (2004) DLT 849 (DB).
In respect of immovable property situated in territories other than West Bengal,

Bombay and Madras no probate is required in respect of Wills made by Hindus.
14.2 How to Get Probate.--
In one case, the petitioner filed Court-fee stamps of Rs. 1,20,920 and sought
exemption from filing Security Bond or in alternative to furnish Security Bond for
nominal sum on ground of being widow and sole legatee in respect of Will in
question. Nobody came forward to contest same and Court directed that
Security Bond for amount of Rs. 1 lakh would serve purpose without burdening
petitioner/sole legatee; Sudershan K. Chopra v. State, 127 (2006) DLT 468 (Del
HC).
An application, having affixed court fee for the probate, should be filed in the
concerned court alongwith a Will in question. Moreover in another case, the
court has held that time for deposit of court fee in respect of application for
grant of probate is 3 months from date of order of grant. Said period is fixed by
law and cannot be enlarged by court under section 148 of CPC. However, court
can allow payment of court fee at any stage of proceeding and may condone
delay and extend time for payment under section 149 of CPC; The Goods of Late
Ravinder Kumar (in re:), MANU/UP/0601/2003 : AIR 2004 All 46.
The application should be filed by the executor of the Will and where no executor
has been appointed by the Will, the application should be made by a competent
beneficiary. The application must state-
(a) the time of the testator's death;
(b) that the writing annexed is his last Will and testament;
(c) that it was duly executed;
(d) the amount of assets which are likely to come to the petitioner's
hand;
(e) that the petitioner is the executor named in the Will.
After receipt of the petition or application, the court issues notice to the next of
kin of the deceased to file objections, if any, to the grant of probate. It also
directs that the general public be notified by the publication of a citation in the
newspaper.
After inviting objections from the next of kin of the deceased and the general
public, the court then asks the petitioner to establish-
(a) proof of death of the testator;
(b) proof that the Will has been validly executed by the testator;
(c) that the Will is the last Will and testament of the deceased.
14.3 Proof of Death.--
It is very simple. This certificate can be obtained from the local municipal or
other authority. If a person is killed in action while serving in armed forces, the
official notification may be produced in proof of death of the testator.
When the execution of the Will has been proved by producing both the witnesses
who have testified before the Sub-Registrar, its authenticity cannot be doubted;
Arun Kumar Singh v. Shyam Kumari, 2006 (64) ALR 254 (All HC).
14.4Letter of Administration.--
Letter of administration is granted to one who would inherit the property of the
intestate. It is granted to a person or persons, who would be entitled to the
whole or any part of the deceased's estate. When several such persons apply for
such administration, it shall be the discretion of the court to grant it to any one
or more of them. When no such person applies, it may be granted to a creditor
of the deceased.
If the deceased has died intestate and he was not a Hindu, Muslim, Buddhist,
Sikh, Jain or exempted person, then those who are connected with him, either
by marriage or by consanguinity (blood relationship) are entitled to obtain
letters of administration of his estate and effects in the following order:-
(a) if the deceased has left a widow, administration shall be granted to

the widow unless the court sees cause to exclude her, either on the
ground of some personal disqualification or because she has no interest
in the estate of the deceased;
(b) if the judge thinks proper, he may associate any person or persons
with the widow in the administration who would be entitled solely to the
administration if there was no widow;
(c) if there is no widow, or if, the court sees cause to exclude the widow,
it shall commit the administration to the person or persons who would be
beneficially entitled to the estate according to the rules for the
distribution of an intestate's estate;
(d) those who stand in equal degree of kindred to the deceased are
equally entitled to administration;
(e) the husband surviving his wife has the same right of administration of
her estate as the widow has in respect of the estate of her husband;
(f) when there is no person connected with the deceased by marriage or

consanguinity who is entitled to letters of administration and willing to
act, they may be granted to creditor.

15
WILL BY A CHRISTIAN
SYNOPSIS
15.1Revocation of Will by Testator's "Marriage
15.2 Question of Religion
Disposition of property through Will is fairly popular among Christians. The number of
Christians opting for testamentary succession is much more than any other community
in India. As a matter of fact, testamentary power of disposition was unknown under the
Hindu Law. It came to be recognised by decisions of English Courts and ultimately
received statutory recognition in Hindu Wills Act.
According to Indian Succession Act, 1925, except for Muslims, the process and
procedure of making or executing a Will is the same for every other community.
Therefore, like others, a Christian can make a Will only when he is of sound mind and is
free from duress or coercion or fraud. The mental power of a testator may be impaired
by old age or disease, but he must be able to comprehend the nature and effect of
disposition. He should possess memory and intelligence to form a proper judgment
regarding the disposition. Old age itself is no incapacity. The mental capacity and
memory must exist at the actual moment of execution.
The formalities required for a Christian to make a Will are-
(a) that it must be in writing;
(b) that it must be duly signed or marked by the testator or signed by some
other person in the presence of and under the direction of the testator himself;
(c) that it must be attested by two or more witnesses.
Simultaneous presence of both the witnesses is not necessary as such a Will can be
proved by one of the attesting witnesses.
Here it must be noted that Christians have the facility to make Privileged Wills also,
provided the testator is employed as a soldier in an expedition or engaged in actual
warfare, or an airman. He should be of 18 years in age. The soldier includes a civilian in
actual military service, but a Will made in military hospital eighteen months after the
cessation of active military service, cannot be admitted as a Privileged Will.
Privileged Wills may be made by word of mouth, words spoken in course of casual
conversation will not constitute testamentary act of disposition. Cogent evidence must
be adduced to prove the statements made by the deceased after executing the Will in
order to find the contents of the Will.
15.1 Revocation of Will by Testator's Marriage.--
Every Will, among Christians, shall be revoked by marriage of the maker, except
a Will made in exercise of a power of appointment when the property over which
the power of appointment is exercised would not in default of such appointment,
pass to his or her executor or administrator, or to the person entitled in case of
intestacy. However, the marriage should be lawful so as to render the Will null
and void.
15.2 Question of Religion.--
Whether the testator is a Muslim or Christian or Hindu, his relationship and

disposing power over the subject matter of the Will are irrelevant in a probate
proceeding.
However, certain basic facts are always kept in consideration. A Hindu convert to
Christianity cannot be re-converted to Hinduism without going through the
formal ceremony of expiations or re-conversions. Where a European lady
renounced Christianity, adopted Hinduism, married a Hindu according to vedic
rites, and then died leaving a Will by which she bequeathed whole of her
property to her husband and appointed him the executor of the Will, it was held
that the husband was entitled to grant of letters of administration even though
the Will was invalid being unattested.

16
WILL BY A MUSLIM
SYNOPSIS
16.1 Limited Power
16.2 Who can be Legatee for Muslims
16.3 Effectiveness of a Muslim Will

16.4 Revocation of Will
16.5 Executor need not be a Muslim
16.6 Probate and Letters of Administration
It may be mentioned here that the Indian Succession Act, 1925, does not affect the
provisions of Muslim Law relating to testamentary succession to the estate of a Muslim.
The leading authority on Muslim Will is Hedaya. The Hedaya was composed by Sheikh
Burhan-ud-din-Ali who belonged to Hanafi School. Another source is Fatwa Alamgiri
which was composed by the author belonging the Hanafi School.
Under the Muslim Law, male and female both can make Will. Will by Pardanashin
woman, is also valid but stronger evidence is needed for obtaining a probate of her Will.
A minor can also make Will but that is subject to his ratification after attaining the age
of majority. The testator must be sane at the time of making the Will. The Will may be
oral or in writing. A Muslim Will, though in writing, need not be signed, even if signed,
need not be attested. However, writing of Will, with due attestation is admissible to
avoid disputes.
16.1 Limited Power.--
Muslim Law limits the power of bequests to one-third of the net assets. The two-
third must in any case be distributed according to rules of intestacy, unless there
are no heirs at all claiming adversely to the legatees, which is rather a remote
contingency.
Thus, a Muslim can validly bequeath only one-third of his net assets, when there
are heirs. The net assets are ascertained after payment of the funeral expenses
of the deceased, his debts, etc.
If there are no heirs, testamentary power can be exercised over the entire
property of the testator. If all heirs agree and give their consent, then one-third
limit can be exceeded.
16.2 Who can be Legatee for Muslims.--
Any person, male or female, irrespective of religion, who is capable of holding

property is eligible for bequest. The legatee according to Muslim law must be a
person competent to receive the legacy. He must be a person in existence at the
time of death of the testator. If the legatee who has to take the property does
not survive the testator, the bequest will lapse and such property becomes a
part of the estate of the testator. However, under Shia law, the legacy, the
subject-matter of the Will pass on to the heirs of the legatee unless it is revoked
by the testator. If the legatee dies without leaving any heir the legacy would
pass on to the heirs of the testator.
A bequest to an heir is not valid unless the other heirs consent to the bequest
after the death of the testator. Whether a person is a legal heir or not, has to be
determined with regard to the position at the time of the testator's death and
not at the time of execution of the Will. However, the bequest made to others
who are not legal heirs does not require the consent of legal heirs. Its purpose is
to prevent the testator from interfering by Will, with the course of devolution of
property according to law among his heirs, although he may give a specified
portion as much as one-third to a stranger. The reason is that a bequest in
favour of an heir would be an injury to other heirs as it would reduce their share,
and would consequently induce a breach of the ties of kindred. A bequest in
excess of the bequeathable third and/or in favour of any heir, are validated and
will be given effect to if after the death of testator the other heirs, whose rights
are affected by such dispositions, give their express or implied consent to the
bequest.
Thus, as per Muslim law, a bequest to an heir even to the extent of one-third
cannot be upheld unless the other heirs consent to the bequest after the death
of the testator. A bequest to a person entitled to succeed as heir to the prejudice
of the other heirs is void in Muslim Law. If the heirs are minors at the time of
testator's death, consent must be given only after attaining majority. A guardian
is not competent to give consent on behalf of a minor. A bequest may be made
for the benefit of any institution but the same cannot be made in favour of an
unborn person unless such person is child in the womb and is born within six
months of the date of Will. But the Shia law recognises the bequest to a child in
the womb if it is born more than six months after the date of the Will but within
the longest period of gestation from the date of the bequest.
16.3Effectiveness of a Muslim Will.--
A Muslim Will becomes effective with the express or implied acceptance of the
legatee, after testator's death. Under the Shia Law if a legatee rejects his share
after testator's death without having accepted it during testator's life-time, the
legacy stands cancelled even if the legatee has taken possession of it. But if the
legatee rejects after death or after acceptance, the legacy stands valid.
16.4Revocation of Will.--
A Will may be revoked by the testator during his life-time expressly or by

implications. It is implied when the testator does an act from which revocation
may be inferred. A bequest of a piece of land is revoked if the testator builds a
house upon it. A bequest of a house is revoked if the testator sells or makes a
gift of the said house to another. It can be oral or in writing. Subsequent Will will
have the effect of revoking the previous Will.
The provisions of the Indian Succession Act, 1925, will apply to Wills made by
Muslims provided they are not in conflict with the recognised canons of Muslim
Law.
16.5 Executor need not be a Muslim.--
It is not necessary that the executor to the Will of a Muslim should be a Muslim.
A Muslim may appoint anybody, whether he is Hindu, Christian or any non-
Muslim to be his executor.
16.6 Probate and Letters of Administration.--
A Will executed by a Muslim may, after due proof, be admitted in evidence

though not probated.
In case of Muslim Will, the estate of the testator vests in the executor, if he
accepts office, from the date of the death of the testator. No letter of
administration is necessary to establish any rights to the property of a Muslim
who has died intestate except in case of debts due to the estate of the deceased
as per section 212(2) of the Indian Succession Act.
The executor of the Will of Muslim need not be a Muslim. The powers and duties
of the executor of a Muslim will be governed by the provisions of Indian
Succession Act as to the extent they are applicable to Muslim.


17
WILL IN SPECIAL AND SUSPICIOUS CIRCUMSTANCES
SYNOPSIS
17.1 Illiterate Person
17.2 Pardanashin Woman
17.3 Blind Person
17.4 Suspicious Circumstances
17.1 Illiterate Person.--
It is generally seen that only educated persons go for Wills. Uneducated persons,
by and large, die intestate. The law, however, does not discriminate against
anybody. For making a Will a person should be of sound mind and major.
Literacy or illiteracy has nothing to do with the Wills.
The procedure for making the Will will be same even for illiterate person. The
Will has to be read before the legatee in the presence of witnesses, and
thereafter he will put his thumb impression.
Section 63 of the Indian Succession Act, 1925, is very clear in this regard, which
says that testator "shall sign or shall affix his mark". Since the word sign
includes mark, a thumb mark would constitute a sufficient signature of execution
of a Will. A mark made by the testator's thumb sweated with ink is sufficient.
Even if a testator is literate and is physically capable of signing, simple making
of mark by him is sufficient for the purpose of execution of a Will. However, in
cases where a person can sign but insists on putting his thumb impression, the
evidence must be carefully scrutinised.
The common practice of execution of a Will is by putting left thumb impression.

So, where right thumb impression is used, such uncommon practice must be
satisfactorily proved. If a testator puts his thumb impression to a Will in which
name is wrongly mentioned, the execution is valid in the eyes of law,
This all proves that the thumb impression is as valid as the signature of the
testator. He has to adopt the same procedure for making the Will, which an
educated person is supposed to adopt.
17.2 Pardanashin Woman.--
In case of a Pardanashin woman executing a Will, there should be two attesting

witnesses, out of whom one of the witnesses could see and could be seen by the
testarix.
17.3 Blind Person.--
An exception has been made in the case of blind men who are competent to
execute Wills. Where the testator is blind, the law only requires that he could
have seen the witnesses, had he not been blind. If he is blind he must feel to be
convinced that witnesses are present.
17.4Suspicious Circumstances.--
The facts of one case revealed that there was evidence of scriber and attesting
witnesses that testator of his own volition executed Will in favour of respondent
daughter. Earlier Will executed in favour of appellants had been specifically
revoked. The plea that testator was physically incapable of executing second Will
since he had thumb marked it whereas earlier Will had been signed by him, was
held not tenable in absence of evidence showing that testator was unconscious
at time of execution of second Will. The Court held the second Will to be
genuine; Daulat Ram v. Sodha, AIR 2005 SC 233: 2005 (1) CCC 471: 2004 (4)
Cur CC 252: 2005 SC 1221: MANU/SC/0969/2004 : (2005) 1 SCC 40: 2004 (9)
SCALE 442: 2004 (8) Supreme 1: 2005 (1) UJ (SC) 202: 2005 (1) WLC (SC)
CVL 63.
In another case, the Court has held that exclusion of natural heirs and
bequeathing in favour of grandsons and their children was not a suspicious
circumstance when there were sufficient and valid reasons for the same. It was
also held that affixation of additional thumb impression because earlier thumb
marks were smudged cannot be treated as suspicious circumstance. Non-
seeking of probate would not be suspicious circumstances as the whole property
under Will was in possession of the beneficiaries. The testator who was suffering
from enlarged prostrate glands and his not going to office of Notary cannot be
treated as suspicious circumstance. One of propounder alleged to have taken
active part in execution of Will but he was neither beneficiary under Will nor
under codicil, his presence would be immaterial and cannot be treated as
suspicious circumstance. Fact that one of marginal witness was not able to
assert from where testator got Will and codicil typed cannot be taken as
suspicious circumstance for annulment of testamentary disposition; Jaswinder
Singh v. Kartar Singh (D) by LRs, AIR 2005 P&H 19 (P&H HC): 2004 (3) CCC 80.
The Supreme Court has also held that active participation and execution of Will
by propounders/beneficiaries is not sufficient to create any doubt either about
testamentary capacity or genuineness of Will. Also, the fact that natural heirs
were excluded and legally wedded wife was given lesser share is not a
suspicious circumstance. The fact that the testator brought draft Will when he
went to the document writer and asked him to scribe the same is not a
suspicious circumstance; Pentakota Satyanarayana v. Pentakota
Seetharatnam, MANU/SC/0819/2005 : AIR 2005 SC 4362: 2005 AIR SCW 5085:
2006 (1) CCC 563: MANU/SC/0819/2005 : (2005) 8 SCC 67: 2005 (7) SCALE
682: 2005 (8) Supreme 666: 2005 (2) WLC (SC) CVL 594.
In one case there was variation in testimony of witnesses to the Will and scribe,
conflicting versions pertaining to typing of the Will by the typist, variation on
issue of time when Will came into existence and was executed, and place of
signatures on last page of Will showing that pre-signed pages was utilized.
Objection led evidence to show their title to property described in the Will,
petitioners failed to prove that Will in question was last Will, hence, probate
could not be granted by the Court; Surender Patrick Lall v. State, AIR 2005 Del
379 (Del HC): 2005 (118) DLT 647: 2005 (81) DRJ 574.
The mere fact that plaintiff has adopted a child and was allotted lion's share in
property as compared to share given to defendant who was genetic son of Y,
cannot by itself be construed as suspicious circumstance. It had also been held
that three of attestators were dead, scribe was also dead. The persons
accquainted with signatures of attestators identified their signatures. The Will
had been proved as per section 90 of Evidence Act; Sulochana Tai v. Sunder,
AIR 2005 Karn 226 (Karn HC): 2005 (33) All Ind Cas 192: 2005 (2) Rec Civ R
256.
The Will revealed, as questioned, disproportionate bequeath in favour of the

plaintiff. But testator had already partitioned his entire property and given it to
all his legal heirs. The property covered under Will was kept for himself for his
existence. Plaintiff had been living with him during his life-time. Bequeathing
substantial portion to him could not be stated to be unnatural or
disproportionate. The Will was duly registered and its execution was duly proved
by evidence of attesting witnesses. The delay in seeking letter of Administration
was duly explained, hence, the execution of Will could not be doubted;
Augustions v. Joseph, MANU/KE/0226/2005 : AIR 2005 Ker 204 (Ker HC).
In one case, the testator had three daughters and four sons. The property was
bequeathed in favour of two sons and the daughters were excluded. However,
reasons were given for making equal distribution. The Court held that merely
because testator was aged 80 years and died 15 days after execution of Will,
cannot be taken as suspicious circumstance as both attesting witnesses had
proved sound and deposing state of testator. The Will was also proved by
handwriting expert, hence it was held duly executed; Sridevi v.
Shetty, MANU/SC/0065/2005 : AIR 2005 SC 780.
The Will in question had been drafted on instructions of person who was not
produced in court as witness. The testator being infirm and in poor health had
died shortly after alleged execution of document. Glaring contradictions and
discrepancies were found in evidence of witness. There was no medical
certificate on record. The Will could not be said to have been proved; Satish
Chander Sabharwal v. State, AIR 2005 Del 125.
The Will was executed by testatrix in favour of petitioner son to exclusion of

other sons. The petitioner actively participated in execution of Will by becoming
attesting witness as well as procuring two witnesses who were his associates.
The Will was not free from suspicious circumstances; Mohan Singh v. Ishar
Singh (deceased by LRs), AIR 2005 P&H 79 (P&H HC): 2004 (2) Hindu LR 385:
2005 (1) Land LR 645: 2004 (4) Rec Civ R 271.
Simply because testator had signed some of pages twice was not good a ground
to hold that the Will was suspicious; Hazara Baradri v. Lokesh Dutta
Multani,MANU/SC/2024/2005 : AIR 2006 SC 370: 2005 AIR SCW 6119: (2005)
13 SCC 278: 2005 (8) SCJ 574: 2005 (9) SCALE 407: 2005 (8) Supreme 102.
An unregistered Will, by itself cannot be taken as made under suspicious

circumstance to disprove it, particularly when attesting witness identified
signature in the Will and deposed that it was drafted in his presence and he had
seen the attestor attesting the Will; Narukurti Sundaramma v. Pendurthi
Venkata Rao, AIR 2006 (NOC) 499 (AP HC).
A Will in favour of nephews in exclusion of legal heirs has been discussed and
decided by the Court. The witnesses produced by nephews made contradictory
versions. The attesting witness did not know the contents of Will though he was
all along with testator during entire period of execution of Will. The doctor's
certificate showed that the testator could not be said to be a stable man because
of his physical and mental state of health and he was not concerned about his
acts and omission. The Will was said to be executed under suspicious
circumstances; Pradip Saikia v. Suwala Saikia, MANU/GH/0129/2005 : AIR 2006
Gau 56: 2006 AIHC 1296: 2005 (4) Cur CC 561: 2005 (3) Gau LR 297.
The examination of scribe and one attesting witness proved that they were
present in house of testator at the time of execution of the Will which was signed
with same pen by attesting witness and executants. No evidence was there to
prove that propounder was present at time of execution of the Will. No
suspicious circumstance could be attributed. The propounder was only a
coparcener. It was held that the Will was genuine; K. Munirathnam Naidu v. K.
Aadi Lakshmamma, AIR 2006 (NOC) 658 (AP HC).
The Supreme Court in its judgment in Niranjan Umeshchandra Joshi v. Mrudula

Jyoti Rao, 2006 (14) SCALE 186: MANU/SC/8788/2006 : AIR 2007 SC 614:
2007 (2) AIR Bom R 69: 2007 (1) Hindu LR 257, dated 15th December, 2006
(having widely attracted the attention print and electronic media) has held that
for a Will to be valid, signature of testator alone would not be sufficient but it
has also to be proved that he was in proper state of mind at the time of making
the Will. The case involved the Will of Umeshchandra Joshi, owner of 'Ramtirth
Brahmi Hair Oil' Company, who had seven sons and three daughters but he had
bequeathed all his property on his second son, depriving the rest. The Will was
drafted in ICU of a hospital where he was undergoing treatment for liposercoma.
He was being treated by a doctor who was a student of beneficiary. The Will was
executed in the presence of two witnesses who were also close to the
beneficiary. Family members who were deprived questioned the genuineness of
the Will and accused the beneficiary of playing fraud on family members.
Raising suspicion on the circumstances surrounding the Will a Division judge

Bench of High Court held that the witnesses to the Will are interested persons,
and evidence adduced in support of execution of the Will was unsatisfactory.
Upholding the verdict of High Court, the Supreme Court also took notice of the
meticulously drafted Will and held "when he was admitted in ICU, he would not
be permitted to carry documents. It is unnatural that he would remember all the
detail of his assets". The Bench added, "An inference can, therefore, be safely
drawn that Appellant (beneficiary) had a role to play in execution of the Will".
In Jagiri Ram (Dead) through LRs. v. Ralla, 2009 (82) AIC 389, Punjab &
Haryana High Court has held that a Will is a declaration in a prescribed manner
which specifies the intention of the person executing it with respect to the
matter which he wishes to take effect after his death. As required under section
63 of the Succession Act, Will is to be attested by two or more witnesses and
each of whom should have seen the testator signing or affixing his mark to Will
or has seen other person signing the Will in the presence and by the direction of
the testator and each of the witnesses shall sign the Will in presence of the
testator. It is further held that once the courts below concurrently on
appreciation of evidence records conclusion against the validity of a Will, the
High Court should not substitute its own opinion even when two views are
possible, unless the finding is found to be perverse or illegal. As per Code of Civil
Procedure, 1908 under Order XIV, rule 5, trial court is to frame all issues that
arises from the pleadings of the parties but the plea on the basis of which an
additional issue arises and has not been framed, an application can be filed for
framing such an issue.
In Vijay Kumar Tiwari (Sh.) v. State, 2009 (1) AD (Del) 496, the Delhi High
Court has observed that wherein testatrix Smt. Jitni Devi executed a Will on 1-2-
1991 leaving her entire property in favour of the appellant, Vijay Kumar Tiwari
excluding her only natural born child (daughter) Smt. Subhadra Kumari, the
objector. Testatrix was suffering from lung decease and hospitalized on 26-1-
1991 and she died on 4-2-1991 i.e., after days of her execution of the Will. Hare
Ram Pandey, PW-3 claims to be scribe of the Will, deposed that he is the brother
of the father-in-law of the sister of Vijay Kumar Tiwari. He deposed that he had
scribed the Will under the instructions of Smt. Jitni Devi in hospital in the
presence of mother of the petitioner, Rameshwar Nath, Shiv Bachan Verma and
5-7 other persons. After writing the Will he read over the same to Smt. Jitni
Devi. The testatrix delivered the document to him with the instructions to
preserve the same and it remained with him upto 1994. Upto 1994 he did not
inform either to the petitioner or to any other about the Will. Vijay Kumar Tiwari
deposed in his evidence that his biological father Sri Jai Mangal Tiwari was real
brother of Rameshwar Tiwari, husband of testator and he was adopted by them
as a son and that on account of love and affection towards him, Smt. Jitni Devi
executed the Will in his favour. But in his cross-examination, he has stated that
his date of birth is 14-7-1972. He does not know on which date he was taken in
adoption. He is XII pass. The name of his father in his school leaving certificate
is Shri Jai Mangal Tiwari. His father's name in his election identity card is Shri Jai
Mangal Tiwari. It is correct that he himself had disclosed the name of his father
to the election officers as Shri Jai Mangal Tiwari. He did not mention in any
document prior to filing of the suit that he was adopted son of Shri Rameshwar
Tiwari. He came to know about the Will after three years of the death of Smt.
Jitni Devi about which Mr. Hare Ram Pandey told him about the Will and he
handed over the Will to him. RW-1 Smt. Subhadra Kumari deposed that the Will
dated 1-2-1991 is not signed by her mother as she was very sick on that day
and her signature on the Will have been forged by the petitioner. RW-2 Ram
Chander deposed that he was by the bed side of his mother-in-law by noon on
1-2-1991 when she was able to recognize him but unable to speak as she was
told to be under sedation by the doctor because of advanced stage of cancer.
Trial Court held that petitioner, Vijay Kumar Tiwari has failed to prove that he
was the adopted son of the testatrix. No reason for the testatrix to exclude her
only child from inheritance has been brought on record. Physical health of
testatrix negated her being in testamentary capacity. The Will being propounded
after 3 years of death of testatrix created doubts about its contemporaneous
existence. The self stated participative role of the beneficiary was the ground
enough to suspect the Will. Witnesses being relatives to the beneficiary cast a
further suspicion on the Will. The signatures of the testatrix are not at the
bottom of the Will (document) but are towards the top left margin of the
document. The place of signatures of Jitni Devi is unusual and suggestive of
somebody's signatures being taken on a blank paper. The language of the will is
having legal words whereas the testatrix was not well versed in legal language.
Even the mother of the petitioner did not inform the petitioner about the
execution of will for about 3 years as the same was alleged to executed in her
presence. Everything is shrounded in mystery. Accordingly the Trial Court
dismissed the suit of the petitioner. In appeal, the High Court has also dismissed
the petition imposing an exemplary cost of Rs. 30,000 upon the appellant to be
paid to respondent No. 2 observing that the fabrication of the document
propounded as a Will is writ large.
In S.R. Srinivasa v. S. Padmavathamma, JT 2010 (4) SC 296 it has been held by

the Supreme Court that in one case the immovable property was owned by 'P'.
'P' had four children namely; 'L', K', 'S' and 'I'. 'S' dies issueless. 'I' has been
alleged to be the second wife of 'C' but 'I' also dies issueless. 'K' also dies
issueless. 'C' was having six children from his first wife and one of them has
been alleged to be 'SP'. At the time of death 'P' was living with 'I' his daughter.
'I' continued to be in possession of the property after the death of 'P' and 'SP'
came into possession of the property after the death of 'I' propounding a 'Will'
duly executed and registered by 'P' in favour of 'I' claiming preference over 'L'.
The 'L' initiated legal proceedings by filing a suit against the 'SP' alleging that
the Will with the 'SP' is not a valid document. The burden of proving the Will to
be a genuine one was on the propounder of the same i.e., 'SP'. But none of the
attesting witnesses was examined. The scribe proved his signature on the Will
only. The plea that the Will was admitted in other proceedings but there was no
admission about the legality and genuineness of the Will. Several suspicious
circumstances, including participation of sole beneficiary in execution of the Will
including her presence at the time when the Will was written and presented for
registration and even the description of property was not given and there is no
convincing reason as to why the other LRs of 'P' have been excluded from the
inheritance. Further, the court observed that in case the Will is held not to be
genuine, the property would be inherited by 'L' as per scheme of section 15(2)
read with section 16 of the Succession Act. The scheme of the provisions of the
Act is that in case of a female dying intestate without leaving son, daughter or
children of a pre-deceased son or daughter, her property would devolve upon
the source from which he/she had inherited meaning thereby that if it is
inherited by her from her husband or father-in-law, it would devolve upon the
heirs of her husband and in case she had inherited the property from her mother
or father, it would not devolve upon the other heirs, but upon the heirs of her
father and neither her husband nor his heirs would get such property but it
would revert back to the heirs of her father. It was, therefore, (or 'SP' to prove
that the Will was duly executed and proved to be genuine. In such cases, an
adversary proceeding becomes a matter of the court's conscious and then the
true question which arises for consideration of the court is whether the evidence
led by the propounder of the Will is such as to satisfy the conscious of the court
that the Will was duly executed by the testator. As the propounder of the Will
has failed to prove the execution and registration of the Will as per requirements
of law, the Will stands not proved. Appeal of 'L' is allowed.
In Balathandayutham v. Ezhilarasan, 2010 (3) Supreme 130 it has been held by

the Supreme Court that when a Will is surrounded by suspicious circumstances,
the person propounding the Will has a very heavy burden to discharge and
unless it is satisfactorily discharged, Courts will be reluctant to treat document
as last Will of testator. The facts of the case are that the testator had three sons
(one appellant and one respondents), one another son; two daughters and one
wife. The testator executed a Will, registered on 25-9-1972 bequeathing his
properties in favour of his two sons (one respondent), two daughters giving his
wife life interest. No property was bequeathed in favour of his son (appellant) on
the ground that after education, he married another woman belonging to some
other caste without the consent of parents and staying apart showing no interest
in the family members. The testator died on 23-5-1980. The brother
(respondent) was in exclusive possession of the property. The appellant (son)
tried to disturb the possession of the respondent (son) over the property with
the help of anti social elements for which the respondent (son) filed a suit in
which the appellant took stand that the Will dated 25-9-1972 was not genuine
and the same has been revoked by another Will dated 25-4-1980 and another
Will dated 2-5-1980 was executed and registered by the testator. Appellant
claimed his right on the basis of Will dated 2-5-1980. The stand of the
respondents is that the Will dated 25-4-1980 and 2-5-1980 both are fabricated
as at the relevant time the testator was bed-ridden and did not have capacity to
execute any Wills and he died within a few days on 23-5-1980. The trial court
dismissed the suit of the respondents upholding the contention of the appellant.
However, the appellate court allowed the appeal and decreed the suit of the
respondent thereby holding that the existence of the Will dated 25-9-1972 has
been admitted by both the parties and the case of the appellant is that the same
has been revoked but the subsequent Will dated 25-4-1980 is an unregistered
Will and both the subsequent Wills were not proved and are surrounded by
suspicious circumstances. The High Court upheld the findings of the appellate
court holding that the Wills dated 25-4-1980 and 2-5-1980 have not been
proved as per requirement of sections 68 and 69 of the Indian Evidence Act.
Attestors of these subsequent Wills were strangers to the family and these Wills
surfaced only when the appellant gave his written statement in 1994 in the suit
filed by the respondents. The stand of the respondents is that the testator went
to a temple to attend a function from where the appellant had taken him to
Cuddalore and as and when the respondent came to know, he brought the
testator back to his house at Vellupuram where the testator was staying all
these years and ultimately died. The Supreme Court also affirmed the findings of
the High Court and dismissed the appeal.
In Nathabai v. Gangaram, 2010 (87) AIC 926 it has been held by the Madhya
Pradesh High Court that suspicious circumstances, if not pleaded in the written
statement, the same cannot be pressed at later stage of arguments or in appeal.
In Nachhattar Kaur v. Amarjit Kaur, 2010 (85) AIC 668, the Punjab & Haryana
High Court has held that a Will is a document that speaks of the mind of the
deceased after his death. The executant of the Will is though never available for
deposing as to under what circumstances, he has executed the Will. This aspect
introduces an element of solemnity in the decision of the question whether the
document propounded is proved to be the last Will of the testator. Normally, the
onus which lies on the propounder can be taken to be discharged on proof of the
essential facts which go into the making of the Will. A Will is required to be
proved like any other document. Since the Will is required to be attested and as
per section 68 of the Indian Evidence Act, 1872, at least one attesting witness is
required to be examined to prove due execution of the Will. The attesting
witness is required to establish that the Will in question was executed by the
testator in the presence of the attesting witnesses and they had attested the
same in the presence of the testator. In a case where the Will is a registered
document then the endorsement made by the Sub-Registrar that the Will had
been thumb marked or signed by the executant in his presence after it was read
over to the executant has a presumption of truth. It is also a settled preposition
of law that in connection with Wills execution of which is alleged to be
surrounded by suspicious circumstances, the test of satisfaction of judicial
conscience has been evolved. That test emphasis that in determining the
question as to whether an instrument produced before the Court is the last Will
of the testator, the Court is called upon to decide a solemn question and by
reason of suspicious circumstances, the Court has to be fully satisfied that the
Will has been validly executed by the testator. Further, the Will is deviation from
natural succession. Merely because the daughters of the executant had been
disinherited vide the Will in itself, is no ground to hold that the Will in question
was a suspicious document while the executant has categorically deposed the
reason thereof.

18
CODICILS
Codicil can be defined as a supplement to a Will. It is the most important aspect of the
Will. The testator is allowed to make alterations in the Will and the process is known as
codicil. The Indian Succession Act, 1925, says codicil is an instrument made in relation
to a Will and explaining, altering or adding to its dispositions and shall be deemed to
form part of the Will. And therefore, a codicil is executed and attested in the same way
as that of a Will. Alterations or additions are deemed to be the part of the Will.
A codicil may or may not be a separate document as it can be endorsed on the original
Will itself.
Codicil is, in fact, an afterthought. When the testator has executed his Will, then after
some time it comes to his mind that something should be added or altered to convey his
wishes properly. That is called codicil.
A codicil cannot be an independent document. It has to be always read with the Will. It
is always advisable that when the alterations or additions are too much and instead of
clarifying they confuse the Will, then a fresh Will should be executed.

19
DRAFTING OF WILLS
As already stated, a Will is the most solemn document and a sacred one, since a dead
man has entrusted to the living to carry out his wishes and desires. The preparation of a
Will is an intelligent work on the part of the person who makes the Will. No doubt
section 85 of the Indian Succession Act, 1925, provides that the courts shall always try
to give a rational construction to every word of the Will if that is possible and lawful,
notwithstanding that it is the primary duty of the person making the Will to avoid
ambiguity or deficiency. Section 85 reads: "No part of a Will shall be rejected as
destitute of meaning if it is possible to put a reasonable construction upon it." Be it
made clear that under the rule of construction of Wills, external evidences and
intentions of the testator are not admissible.
The primary object of a Will is to declare in proper form the intention of the testator as
to the disposition of his estate after his death, and to make provision for those whom he
desires to benefit by leaving them an interest in his property. Ordinarily, the executor,
or the administrator, is expected to collect and to call in the whole estate of the testator
as soon as possible after his death, and to distribute and dispose of the same according
to the directions contained in the Will.
Thus, while drafting a Will, the primary aim should be to express the intention of the
testator in simple, clear and unambiguous language. The law does not require that any
technical words or terms of art should be used in a Will. Sections 74 and 75 of the
Indian Succession Act, 1925, lays down that the wording should be such that the
intention of the testator can be easily ascertained therefrom. The object and the subject
of the Will should be precisely described to avoid the necessity of future enquiry as to
the property which has been dealt with the Will, or as to the identity of the persons who
are sought to be benefited by the bequests in the Will. In the absence of a clear and
precise description of both the object and the subject of the dispositions mentioned in
the Will, the court may find it necessary to inquire into every material fact relating to
the persons who claim to be interested under the Will, the property which is claimed to
be the subject of the disposition, the circumstances of the testator and of his family,
and into every other fact a knowledge of which may conduce to the right application of
the words which the testator has used. Such an enquiry entails time, labour and money,
which should and can be avoided if proper care is taken at the time of writing the Will.
There may be cases where the entire Will or an important part thereof may have to be
rejected owing to an ambiguity or deficiency on the face of the document. Standard
forms are to be found in some well-known books on conveyancing and are also given in
this book which can be adopted to the requirements of each case, but care should be
taken not to be too slavish, and not to use an expression which may have a peculiar
significance under the English law but may be inapplicable to the circumstances
prevailing in this country or to the estate of the testator.
Every Will should ordinarily begin with the name and description of the testator, and it
should be stated there that it is his last Will. The date on which the Will is made should
also be mentioned either at the commencement, or in the end, before or after the
signatures. The following are suitable instances of how the Wills should be made to
commence-
"This is the last Will of mine (name and description) which I make on.....day
of...... 20....I hereby revoke all testamentary dispositions heretofore made by
me, (or I hereby revoke the Will dated.......................made by me), or
I.....(name and description of the testator) hereby revoke all testamentary

dispositions hereto made by me and declare this to be my last Will which I make
on.....day of.....20....
It is advisable to mention each bequest in a separate paragraph with a full description

of the legatee; and care should be taken to specify the interest conferred upon a female
legatee, i.e., it should be specially mentioned whether she is given an absolute interest
or only a limited or life-interest.
The executor or executors, appointed by the Will should also be clearly described and
their powers properly defined. If it is desired to constitute the executors as trustees as
well, their powers to invest the funds forming part of the estate or to transfer any
property by sale or otherwise must be specified. At the end of the Will, the testator
should put his signature and signatures of at least two witnesses, who, as it has already
been stated, need not be present at the same time, should be secured. A codicil must
also be executed with the same formalities and in the same manner as a Will; and it is
advisable that it should contain a brief description of the Will to which it refers and state
that it is the first or second codicil to that Will, and so on. Any corrections or
interlineations in the Wills and codicils should be signed or initialled both by the testator
and the witnesses, otherwise there is danger of these being ignored. It has already
been stated that no particular terms of art or expressions need be used in the drafting
of Wills, but by practice extending over a very long period a specific phraseology and
style have now come to be almost universally adopted in such drafts; and it is advisable
that this phraseology and style should be adhered to, as they have acquired well
defined meanings and recognition by a long string of judgments of eminent judges.
The concluding part of a Will or a codicil should somewhat be in this form:
"In witness whereof I have signed (or affixed my mark or seal) to this Will in the
presence of witnesses the day and year first abovementioned, (or the..........day
of............20.....); or, in witness whereof.......................(name and description
of the person signing the Will on behalf of the testator) by his direction and in
his presence this.......day of...........20...., in the presence of witnesses."
This should be followed by the signatures of at least two witnesses in the following
form:
"Signed and acknowledged by the above-named (testator) as his last Will in our
(my) presence who have in his presence set our (my) signatures (signature) as
witnesses (witness); or, acknowledged by the above-named (testator) to be his
last Will and signed by his direction by.....(name and description of the person
signing the Will) in our (my) presence of who have in the presence the said
(testator) signed this Will as witnesses (witness)."
Or,
"Acknowledged by the above-named (testator) to be his signature or mark (or,

the signature of the person signing the Will) on his last Will in our (my) presence
who in his presence have hereto put our (my) signatures (signature) as
witnesses (witness)."

20
PROVISIONS OF THE INDIAN SUCCESSION ACT, 1925, WITH DIGEST OF CASES
PRELIMINARY
2. Definitions.-
In this Act, unless there is anything repugnant in the subject or context,-
(a) "administrator" means a person appointed by competent authority to

administer the estate of a deceased person when there is no executor;
(b) "codicil" means an instrument made in relation to a Will, and

explaining, altering or adding to its dispositions, and shall be deemed to
form part of the Will;
(bb) "District Judge" means the Judge of a Principal Civil Court of original
jurisdiction;
(c) "executor" means a person to whom the execution of the last Will of a
deceased person is, by the testator's appointment, confided;
(c) "India" means the territory of India excluding the State of Jammu and
Kashmir;
(d) "Indian Christian" means a native of India who is, or in good faith
claims to be, of unmixed Asiatic descent and who professes any form of
the Christian religion;
(e) "minor" means any person subject to the Indian Majority Act, 1875 (9
of 1875), who has not attained his majority within the meaning of that
Act, and any other person who has not completed the age of eighteen
years; and "minority" means the status of any such person;
(f) "probate" means the copy of a Will certified under the seal of a Court
of competent jurisdiction with a grant of administration to the estate of
the testator;
(g) "State" includes any division of India having a Court of the last
resort; and
(h) "Will" means the legal declaration of the intention of a testator with
respect to his property which he desires to be carried into effect after his
death.
TESTAMENTARY SUCCESSION
57. Application of certain provisions of Part to a class of Wills made by Hindus,

etc.-
The provisions of this Fart which are set out in Schedule III shall, subject to the
restrictions and modifications specified therein, apply-
(a) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jain on
or after the first day of September, 1870, within the territories which at
the said date were subject to the Lieutenant-Governor of Bengal or within
the local limits of the ordinary original civil jurisdiction of the High Courts
of Judicature at Madras and Bombay; and
(b) to all such Wills and codicils made outside those territories and limits
so far as relates to immovable property situate within those territories or
limits; and
(c) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jain on
or after the first day of January, 1927, to which those provisions are not
applied by clauses (a) and (b):
Provided that marriage shall not revoke any such Will or codicil.
58. General application of Part.-
(1) The provisions of this Part shall not apply to testamentary succession to the
property of any Mohammedan nor, save as provided by section 57, to
testamentary succession to the property of any Hindu, Buddhist, Sikh or Jain;
nor shall they apply to any Will made before the first day of January, 1866.
(2) Save as provided in sub-section (1) or by any other law for the time being in
force, the provisions of this Part shall constitute the law of India applicable to all
cases of testamentary succession.
Of Wills and Codicils
59. Person capable of making Wills.-
Every person of sound mind not being a minor may dispose of his property by
Will.
Explanation 1.-A married woman may dispose by Will any property which she
could alienate by her own act during her life.
Explanation 2.-Persons who are deaf or dumb or blind are not thereby
incapacitated for making a Will if they are able to know what they do by it.
Explanation 3.-A person who is ordinarily insane may make a Will during interval
in which he is of sound mind.
Explanation 4.-No person can make a Will while he, is in such a state of mind,
whether arising from intoxication or from illness or from any other cause, that
he does not know what he is doing.
Illustrations
(i) A can perceive what is going on in his immediate neighbourhood, and can
answer familiar questions, but has not a competent understanding as to the
nature of his property, or the persons who are of kindred to him, or in whose
favour it would be proper that he should make his Will. A cannot make a valid
Will.
(ii) A executes an instrument purporting to be his Will, but he does not

understand the nature of the instrument, nor the effect of its provisions. This
instrument is not a valid Will.
(iii) A, being very feeble and debilitated, but capable of exercising a judgment as
to the proper mode of disposing of his property makes a Will. This is a valid Will.
CASE LAW
Free Will
In order to constitute sound testamentary disposition, the testator must retain a

degree of understanding to comprehend what he is doing, to have a volition or
power of choice and that what he does is really his doing and not the doing of
anybody else; Swinfen v. Swinfen, AIR 1953 Nag 316. Where the maker of the
Will, i.e., testatrix expresses her desire in "Wasiyatnama" for disposal or

bequeath to property in favour of grandsons absolutely and finally to be effective
after her death, then such Wasiyatnama is to be treated as valid document or
Will; Re: Kamleshwari Devi (deceased) and Vikash Singh v. Devesh Pratap
Singh, AIR 2002 Pat 24.
Sound Mind
It is necessary that any disorder of mind should poison his affection, pervert his
sense of right and wrong or prevent the exercise of his natural faculties, he
should suffer from no delusion as to influence his Will in disposing of his
property or bring about a disposal of it which he would not have done if in sound
mind; Lila Sinha v. Kumar Bijoy Protap Deo Singh, AIR 1925 Cal 769 ILCP.
If there are any suspicious circumstances surrounding the execution of a Will,

the propounder must remove the suspicions by cogent and satisfactory
evidence; Yashoda Gupta v. Suniti Goyal, AIR 2002 Del 20.
In one case the Calcutta High Court observed that mere ability to sign one's
name did not necessarily imply the possession of the full mental power requisite
for a valid disposition of property; nor was it sufficient to show that the testator
was conscious when he executed the instrument; Surendra v. Rani Dasi, ILR 47
Cal 1043; Venkata Krishnaya v. Annapurni, 10 MLT 304.
Similarly, just because a testator was conscious or was able to answer a

question put by a doctor about his illness was not considered sufficient to prove
testamentary capacity; Jogesh Chandra Shaha v. Bhiku Sau
Paramanik, MANU/WB/0062/1922 : AIR 1924 Cal 512; Brajeshwari Dasi v. Rasik
Chandra Ghosh, MANU/WB/0348/1924 : AIR 1925 Cal 739.
The test of soundness of mind laid down in law is a workable test; if a testator
has capacity to appreciate the fact that he is making a Will, what are the
contents of the Will and his ability to appreciate the nature of disposition he is
making having regard for the claims of affection and family relationship and also
the claims of the society or community to which he belongs; A.E.G. Carapiet v.
A.Y. Derderian, MANU/WB/0074/1961 : AIR 1961 Cal 359.
The testamentary capacity has to be judged not by an absolute standard but

relative to a particular testamentary act; Krishna Kumar Sinha v. Kayastha
Pathshala (Prayag) Allahabad, AIR 1966 All 570; Chhanga Singh Inder Singh v.
Dharam Singh, AIR 1965 Punj 204.
The question of soundness of mind is a question of fact and of degree of mental

capacity in each case. Thus, where a testator, while in good physical and mental
health, gives instructions to a solicitor to draft a Will for him and the solicitor
makes a draft accordingly, a very slight mental capacity for its execution will
suffice; V.E. DeSouza v. R.P. DeSouza, AIR 1956 MB 246; Chandra Das v.
Lakhan Chandra Das, MANU/WB/0107/1961 : AIR 1961 Cal 518. In a case, the
plea that testator was not in sound disposing state of mind, being addicted to
drinks, is not maintainable as nothing is there on record to show that he was in
drunken state at the time of making Will. Undue influence over the testator by
the legatee is not tenable by only mere saying that legatee was sending money
for the testator for his day-to-day expenses as the legatee was a rich person.
Testator bequeathing his land properties to his deaf and dumb son and also to
unmarried son who was taking care of and assisting him in his life, excluding his
daughters and a son completely giving reasons in the Will, does not create any
suspicious circumstance. Mere exclusion of son who was not in good terms with
deceased and also daughters will not make Will as being surrounded by
suspicious circumstances; Benedict Nazreth v. Lawrence Nazreth, AIR 2003 Karn
369.
But if the testator is of weak mind and the Will is of a complicated nature, a very
heavy burden lies on the person, relying on the Will that the testator possessed
sound mental faculty capable of comprehending as to what he was doing. The
menial weakness amounting to incapacity must be qua the Will; Nabagopal v.
Sarala Bala Mitter,MANU/WB/0370/1930 : AIR 1933 Cal 574.
In Vijay Kumar Tiwari (Sh.) v. State, 2009 (1) AD (Del) 496, the Delhi High
Court has observed that wherein testatrix Smt. Jitni Devi executed a Will on 1-2-
1991 leaving her entire property in favour of the appellant, Vijay Kumar Tiwari
excluding her only natural bom child (daughter) Smt. Subhadra Kumari, the
objector. Testatrix was suffering from lung decease and hospitalized on 26-1-
1991 and she died on 4-2-1991 i.e., after three days of her execution of the
Will. Hare Ram Pandey, PW-3 claims to be scribe of the Will, deposed that he is
the brother of the father-in-law of the sister of Vijay Kumar Tiwari. Said Hare
Ram Pandey deposed that he had scribed the Will under the instructions of Smt.
Jitni Devi in hospital in the presence of mother of the petitioner, Rameshwar
Nath, Shiv Bachan Verma and 5-7 other persons. After writing the Will he read
over the same to Smt. Jitni Devi. The testatrix delivered the document to him
with the instructions to preserve the same and it remained with him upto 1994.
Upto 1994 he did not inform either to the petitioner or to any other about the
Will. Vijay Kumar Tiwari deposed in his evidence that his biological father Sri Jai
Mangal Tiwari was real brother of Rameshwar Tiwari, husband of testator and he
was adopted by them as a son and that on account of love and affection towards
him, Smt. Jitni Devi executed the Will in his favour. But in his cross-
examination, he has stated that his date of birth is 14-7-1972. He does not
know on which date he was taken in adoption. He is XII pass. The name of his
father in his school leaving certificate is Shri Jai Mangal Tiwari. His father's name
in his election identity card is Shri Jai Mangal Tiwari. It is correct that he himself
had disclosed the name of his father to the election officers as Shri Jai Mangal
Tiwari. He did not mention in any document prior to filing of the suit that he was
adopted son of Shri Rameshwar Tiwari. He came to know about the Will after
three years of the death of Smt. Jitni Devi about which Mr. Hare Ram Pandey
told him about the Will and he handed over the Will to him. RW-1 Smt.
Subhadra Kumari deposed that the Will dated 1-2-1991 is not signed by her
mother as she was very sick on that day and her signature on the Will have
been forged by the petitioner. RW-2 Ram Chander deposed that he was by the
bed side of his mother-in-law by noon on 1-2-1991 when she was able to
recognize him but unable to speak as she was told to be under sedation by the
doctor because of advanced stage of cancer. Trial Court held that petitioner,
Vijay Kumar Tiwari has failed to prove that he was the adopted son of the
testatrix. No reason for the testatrix to exclude her only child from inheritance
has been brought on record. Physical health of testatrix negated her being in
testamentary capacity. The Will being propounded after 3 years of death of
testatrix created doubts about its contemporaneous existence. The self stated
participative role of the beneficiary was the ground enough to suspect the Will.
Witnesses being relatives to the beneficiary cast a further suspicion on the Will.
The signatures of the testatrix are not at the bottom of the Will (document) but
are towards the top left margin of the document. The place of signatures of Jitni
Devi is unusual and suggestive of somebody's signatures being taken on a blank
paper. The language of the Will is having legal words whereas the testatrix was
not well versed in legal language. Even the mother of the petitioner did not
inform the petitioner about the execution of Will for about 3 years as the same
was alleged to have executed in her presence. Everything is shrounded in
mystery. Accordingly the Trial Court dismissed the suit of the petitioner. In
appeal, the High Court has also dismissed the petition imposing an exemplary
cost of Rs. 30,000 upon the appellant to be paid to respondent No. 2 observing
that the fabrication of the document propounded as a Will is writ large.
Validity of a Will which is having Thumb Mark only of the Literate Testator but
not signed
In one case the Supreme Court of India has held that there is no infirmity in the
Will which is only thumb marked by the literate testator, as the reason of not
having signed the Will has been given in the Will itself that he was unable to sign
due to shivering of fingers being diabetic patient of nervous weakness; P.S.
Sairam v. P.S. Rama Rao Pisey, 2004 (5) All MR (SC) 386: 2004 AIR SCW 911:
2004 (2) Civ LJ 438: 2004 (1) CCC 649: MANU/SC/0085/2004 : (2004) 11 SCC
320: 2004 (2) SCALE 233: 2004 (1) Supreme 900: 2004 (1) UC 503.
In ordinary cases, the execution of a Will by a person of sound mind raises the
presumption that he understood and approved the contents of the Will; Womesh
Chander v. Rashmohini, ILR 21 Cal 714 (PC).
Disability, physical and mental militates strongly against the voluntary character
of the Will; Ajit Chandra Majumdar v. Akhil Chandra
Majumdar, MANU/WB/0150/1960 : AIR 1960 Cal 551; Ryali Kameswara Rao v.
Bendapudi Suryaprakasarao, MANU/AP/0088/1962 : AIR 1962 AP 178.
Where three Wills are made by three testators in one single documentary and
one of the testators was found insane, it was held that since the Will of the
insane person could be severed from the rest, the remaining Wills in the
document were valid; V. Sarda v. K.V. Narayana Menon, MANU/KE/0034/1989 :
AIR 1989 Ker 155.
It is a settled law that existence of a delusion by itself is not sufficient to deny a

person of testamentary capacity; Broughton v. Knight, LR 3 P&D 64; Banks v.
Good Fellow, 1870 (5) QB 549.
Even if at the time of making the Will, the testator was not wholly free from the
exciting influence of drink or intoxicant, yet the excitement did not exist to the
extent of blurring his reason and judgment, then his Will cannot be held to be
invalid; Surendra v. Rani Dasi, ILR 47 Cal 1043.
Similarly, where a testator who was a heavy drinker was sober when he went to
his solicitor to give instructions for drafting the Will, the Will cannot be
impeached just because at the time of signing the Will he was drunk; Woolmer
v. Daly, ILR 1 Lah 173.
Mere old age is no incapacity; Ram Nath v. Ram Nagina, MANU/BH/0130/1962 :

AIR 1962 Pat 481.
If the testator is capable of understanding the nature of his act, he may be very
feeble and debilitated in understanding and be at the point of death, but his Will
cannot be impeached; Jamuna Dasi v. Hari Dasi, (1957) All LJ 667.
Where execution of a Will has been proved by reliable and cogent evidence, the
presumption would be that the testator was sane and had sound testamentary
capacity; Man Kaur v. Gurnam, AIR 1984 NOC 51(Punj).
It is essential that no disorder of the mind should poison his affections, pervert
his sense of right or prevent the exercise of his natural faculties, that no insane
delusion should influence his Will in disposing of his property, and bring about a
disposal of it which, that his mind been sound, would not have been made.
Perversion of moral feeling does not constitute unsoundness of mind.
Eccentricity alone does not prevent a man from disposing of his property by Will
and the extravagance of the provisions of a Will is not necessarily in itself
conclusive evidence of unsoundness of mind; Halsbury, 3rd Edition, Vol. 16, pp.
855-856.
A probate court is only concerned with the question as to whether the document
put forward as the last Will of the deceased person was duly executed and
attested. The court is also to see whether at the time of the execution of that
document the testator had sound disposing mind. The Probate Court is not to
embark on the question relating to disputed questions of title and possession;
Papoo v. Kuruvilla, 1994 (2) KLT 278.
Onus of Proof
The onus to prove that executant was not in a sound and disposing state of mind
while executing Will lies on the objector; Puttegowda v. Thimmajamma, AIR
1999 Karn 17.
Whenever a question is raised whether the testator was a major at the time of
making the Will, the onus of proof that he was a major is on the propounder of
the Will; Kalidindi Venkata Subharaja v. Chintalapati
Sitbharaja, MANU/SC/0203/1967 : AIR 1968 SC 947.
To prove a valid Will, the propounder is required to examine one of the attesting
witnesses thereof; Bandoram Sitaram Bapat v. Sarkar Sitaram
Bapat,MANU/MH/0013/1996 : AIR 1996 Bom 56; Subramanian (P) v.
Ramachandran, MANU/KE/0012/1996 : AIR 1996 Ker 64.
The initial onus of proof as to the genuineness of the Will lies on the propounder
and once that onus is discharged successfully, it is for the other party to
disprove; Gurdial Singh v. Ratan Kaur, AIR 1996 P&H 265. Burden of proof in
respect of the Will's contents lies on the propounder; Chandrabati v. Laxmi
Devi, MANU/OR/0072/1991 : AIR 1991 Ori 289. The Delhi High Court has held
that onus of proving Will is on Propounder; Santosh Kakkar v. Ram Prasad, 71
(1998) DLT 147 (Del HC).
Mode of proving a Will does not ordinarily differ from that of proving any other
document except to the special requirement of attestation prescribed in the case
of a Will by section 63 of the Indian Succession Act, 1925. The onus of proving
the Will is on the propounder and in the absence of suspicious circumstances
surrounding the execution of the Will, proof of testamentary capacity and the
signature of the testator as required by law is sufficient to discharge the onus.
Where, however, there are suspicious circumstances, the onus is on the
propounder to explain them to the satisfaction of the court before the court
accepts the Will as genuine. In a case, application for grant of probate was filed.
Property was bequeathed on propounder to the exclusion of children of testatrix,
aged lady of 75 years. There was noting by Typist that he typed Will on
instructions of testatrix though she was in the hospital at the time of execution.
Even Typist was not examined to explain his notings. Will contained thumb
impression of testatrix though she could sign. Will did not appear to be natural.
Propounder took active part in execution of Will but absented himself from
entering witness box to explain suspicious circumstances. Grant of probate was
held liable to be set aside; Vijay Kumar Banerjee v. Arun Kumar
Chakravarty, MANU/UP/0599/2003 : AIR 2004 All 29.
Even where circumstances give rise to doubts, it is for the propounder to satisfy
the conscience of the court. The suspicious circumstances may be as to the
genuineness of the signatures of the testator, the condition of the testator's
mind, the dispositions made in the Will being unnatural, improbable or unfair in
the light of relevant circumstances or there might be other indications in the Will
to show that the testator's mind was not free. In such a case, the court would
naturally expect that all legitimate suspicions should be completely removed
before the document is accepted as the last Will of the testator. If the
propounder himself takes a prominent part in the execution of the Will which
confers a substantial benefit on him, that is also a circumstance to be taken into
account, and the propounder is required to remove the doubts by clear and
satisfactory evidence. If the propounder succeeds in removing the suspicious
circumstances the court would grant probate, even if the Will be unnatural and
might cut-off wholly or in a part near relations; Gopal v. Adarmoni, (1988) I Ori
LR 352. In a case, the court has observed that signature of testator on Will duly
proved not only by attesting witnesses but also by executor of Will and the fact
that Will was attested by four witnesses instead of two witnesses, does not
create any doubt in execution of Will -rather it strengthens its authority for
reason that out of four witnesses two were lawyer and colleague of deceased
and two were Doctors. Will was also registered subsequently by testator.
Further, the attesting witnesses and executors of Will deposed on oath about
soundness of mind of testator at the time of execution of Will. Mere fact that
they were executors, appointed by deceased testator or that they were getting
some benefit out of Will, is no ground to hold that they were deposing falsely.
Hence, Will was held validly executed; L.C. Lal v. State, AIR 2003 Del 63.
Minor
A minor being of immature understanding cannot be said to be of sound mind

and as such is incapable of making a Will. An exception to this principle is to be
found in section 60 of the Indian Succession Act. A Will executed by a minor,
though inoperative as a Will, may be operative as a valid authority to adopt;
Vijayratnam v. Sudarsan,MANU/PR/0027/1925 : AIR 1925 PC 196.
A minor, of whose person and property, a guardian has been appointed by the
court shall remain a minor until he attains majority under section 3 of the Indian
Majority Act, 1875, and till such time is incompetent to make a Will; Miranda (in
re:), MANU/WB/0023/1924 : AIR 1924 Cal 644.
Old Age/Sickness
In order to make a valid Will, the testator need not be in perfect state of health.
Even a tuberculosis patient may be in fit state of mind to execute a Will. Illness
and physical weakness of the testator/testatrix would least affect his/her mental
health or disposing state of mind in the absence of evidence to the contrary,
Jamuna Dasi v. Hari Dasi, 1957 ALJ 667.
Proof of Authenticity of a Will
The testator was old and also suffered from paralysis. There was no material to
show that he understood and accepted deposition made in Will. The soundness
of mind was also not proved. Also, the execution and attestation was surrounded
by suspicious circumstances, prodigious in number. Propounder failed to
establish authenticity of Will. It has been held that no probate could be granted;
Vasudeo Mahadeo Paranjape v. Suman Anant Paranjape, AIR 1994 NOC 137
(MP).
Mere signatures of witnesses towards the end of an instrument or somewhere on

an instrument are quite sufficient to show without explanation that the witnesses
put their signatures by way of saying that they had seen the document being
executed and had received an acknowledgement. It is not necessary for them to
state that they put their signatures in the presence of the testator; Dulhin Fill
Kueri v. Moti Jharo Kuer, MANU/BH/0055/1972 : AIR 1972 Pat 214 (215): 1972
BLJR 256 (DB).
The uneven distribution of assets among children, by itself, cannot be taken as
circumstance causing suspicion surrounding the execution of the Will; S.
Sundaresa Pai v. Sumangala T. Pai, MANU/SC/0750/2001 : AIR 2002 SC 317.
60. Testamentary guardian.-
A father, whatever his age may be, may by Will appoint a guardian or guardians
for his child during minority.
61. Will obtained by fraud, coercion or importunity.-
A Will or any part of a Will, the making of which has been caused by fraud or
coercion, or by such importunity as takes away the free agency of the testator,
is void.
Illustrations
(i) A, falsely and knowingly, represents to the testator, that the testator's only
child is dead, or that he has done some undutiful act and thereby induces the
testator to make a Will in his, A's favour; such Will has been obtained by fraud,
and is invalid.
(ii) A, by fraud and deception, prevails upon the testator to bequeath a legacy to
him. The bequest is void.
(iii) A, being a prisoner by lawful authority, makes his Will. The Will is not invalid
by reason of the imprisonment.
(iv) A, threatens to shoot B, or to burn his house or to cause him to be arrested

on a criminal charge, unless he makes a bequest in favour of C. B, in
consequence, makes a bequest in favour of C. The bequest is void, the making
of it having been caused by coercion.
(v) A, being of sufficient intellect, if undisturbed by the influence of others, to

make a Will yet being so much under the control of B that he is not a free agent,
makes a Will dictated by B. It appears that he would not have executed the Will
but for fear of B. The Will is invalid.
(vi) A, being in so feeble a state of health as to be unable to resist importunity,

is pressed by B to make a Will of a certain purport and does so merely to
purchase peace and in submission to B. The Will is invalid.
(vii) A, being in such a state of health as to be capable of exercising his own

judgment and volition, B uses urgent intercession and persuasion with him to
induce him to make a Will of a certain purport. A, in consequence of the
intercession and persuasion, but in the free exercise of his judgment and volition
makes his Will in the manner recommended by B. The Will is not rendered
invalid by the intercession and persuasion of B.
(viii) A, with a view to obtaining a legacy from B, pays him attention and flatters
him and thereby produces in him a capricious partiality to A. B, in consequence
of such attention and flattery makes his Will, by which he leaves a legacy to A.
The bequest is not rendered invalid by the attention and flattery of A.
CASE LAW
Will obtained by force or fraud or undue influence
Taking prominent part by the legatee does not warrant the conclusion that
testators were not free agents and were under supervening influence of legatee;
Subraminian (P) v. Ramchandran, MANU/KE/0012/1996 : AIR 1996 Ker 64.
The influence to vitiate an act must amount to force and coercion destroying free
agency. Ordinarily, when the evidence adduced in support of the Will is
disinterested, satisfactory and sufficient to prove the sound and disposing state
of the testator and his signature as required by law, court would be justified in
making a finding in favour of the propounder. But in cases in which an execution
of the Will is surrounded with suspicious circumstances and the propounder fails
to remove the suspicion as to execution of the Will, probate would be refused;
Asutosh v. Umasashi, MANU/WB/0049/1984 : AIR 1984 Cal 223.
Where the suspicion arises with regard to a particular clause of a Will which is
removable but the suspicion is not removed by the propounder, the court can
admit the rest of the instrument to probate; Sarat Kumari v. Swatichand, 33
CWN 374: 56 IA 62: MANU/PR/0069/1928 : AIR 1929 PC 45.
To constitute fraud the conduct of the party committing the fraud must be
deliberately dishonest. Fraud may be pleaded as a defense in a probate
proceeding alleging that the execution of the Will was obtained by fraud. But the
burden of proving fraud lies squarely upon the person who alleges the same;
Kamla v. Ratan, MANU/UP/0072/1971: AIR 1971 All 304.
To constitute coercion, actual violence is not the necessary element to be

proved. All that is required to be proved is that there must be some influence
relating to the making of the Will itself and over bearing the mind of the
testator; Boyse v. Rossbarough, (1857) HL Cas 2.
The mere fact that a person has been suffering from some mental distress is not
sufficient to give rest to a presumption of undue influence- Apart from mental
distress there must be some action - exerting pressure or influence on behalf of
the other party; Gobordhan v. Jai Kishan, ILR 22 All 224.
In D. Pradeep Kishan @ D. Pradeep v. State of Bihar, 2010 (87) AIC 671 (Pat
HC) it has been held by the Patna High Court that cognizance of forged signature
on Will cannot be looked into by the criminal court and competent court is the
Probate Court.
62. Will may be revoked or altered.-
A Will is liable to be revoked or altered by the maker of it at any time when he is

competent to dispose of his property by Will.
CASE LAW
Illiterate testator
Where the testator or testatrix, an illiterate person, intelligently understood

contents of the Will, when it is read over to him or her and directed changes in
it, it cannot be said that the Will was not intelligently executed; L. Chamanlal v.
Ram Katori, MANU/SC/0388/1972 : AIR 1972 SC 2296: 1973 (1) SCJ 332:
(1973) 3 SCC 384.
Revocation of a Will
A Will is of its own nature revocable, and therefore, though a man should make
his testament and last Will irrevocable in the strongest and most express terms,
yet he may revoke it, because his own act and deed cannot alter judgment of
law to make that irrevocable which is of its own nature revocable; Ram Avtar v.
Ram Sundari,MANU/BH/0166/1959 : AIR 1959 Pat 585.
In case of two Wills, the latter one shall prevail; Badari Basamma v. Kandrikeri.
AIR 1984 NOC 237 (Kant).
The general principle of law is that a joint Will is revocable at any time by either
of the testators during their joint life or after the death of one of them by the
survivor; P. Krishnan v. Lakshmi Ammal, 1990 (1) CCC 478.
For proving that the Will had been revoked, it has to be shown that the testator
had made another Will or codicil or by some writing declared his intention to
revoke the Will; Anil Behrai Ghosh v. Latika Bala Dassi, MANU/SC/0078/1955 :
AIR 1955 SC 566 (573): 1955 (2) Mad LJ (SC) 84: 1955 SCA 1026: 1955 SCJ
578: MANU/SC/0078/1955: 1955 (2) SCR 270.
When the deed of revocation of Will has been admitted in evidence without
objection, propounder cannot contend that document was not executed by
testatrix; Aamal Das Gupta v. Dwijendra Lal Das Gupta, MANU/WB/0053/1992 :
AIR 1992 Cal 341.
Of the Execution of unprivileged Wills
63. Execution of unprivileged Wills.-
Every testator, not being a soldier employed in an expedition or engaged in

actual warfare, or an airman so employed or engaged, or a mariner at sea, shall
execute his Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it shall be
signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person
signing for him, shall be so placed that it shall appear that it was
intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom
has seen the testator sign or affix his mark to the Will or has seen some
other person sign the Will, in the presence and by the direction of the
testator, or has received from the testator a personal acknowledgement
of his signature or mark, or the signature of such other person; and each
of the witnesses shall sign the Will in the presence of the testator, but it
shall not be necessary that more than one witness be present at the
same time, and no particular form of attestation shall be necessary.
CASE LAW
Unprivileged Wills
Even such Wills could be made orally, but in such a case strict proof of the words
used by the testator would be necessary; Venkat Rao v.
Namden, MANU/PR/0060/1931 : AIR 1931 PC 285.
Signature or affixation of mark
Signing must be strictly according to the law or rules; where a person is unable
to write his name, he may put his mark in accordance with the law or rules in
force; Ram Dayal v. Brijraj, MANU/SC/0269/1969 : AIR 1970 SC 110: 1970 All
LJ 92: 1970 (1) SCR 530.
Where the signature of the testator is challenged as a forged signature and the
Will does not come from the custody of a public authority or a family solicitor,
the fact that the dispositions made in the Will were unnatural, improbable or
unfair would undoubtedly create some doubt about the Will, especially, when the
document is unregistered and comes from the custody of a person who is the
major beneficiary under the Will; Pushpavati v. Chandraja
Kadamba, MANU/SC/0396/1972 : AIR 1972 SC 2492: (1973) 3 SCC 291.
The timing of the writing of the Will, the signature of the Will, by the testator
and the attesting witnesses signing the Will are very crucial factors;
Virupakshappa Malleshappa v. Akkamahadevi, AIR 2002 Karn 83.
A Will may be signed on behalf of the testator but such signature must be made
in his presence and under his direction; K. Nookraju v. Venkata
Rao, MANU/AP/0060/1974 : AIR 1974 AP 13.
Where the testator does not sign himself but through someone else, there must
be at least three persons besides the testator himself, viz., the person signing
for him and the two attesting witnesses; Radhakrishna v. Subbanaiyar, ILR 40
Mad 550.
It cannot be laid down as a matter of law that because the witnesses did not
state in examination-in-chief that they signed the Will in the presence of the
testator, there was no due attestation. It will depend on the circumstances
elicited in evidence whether the attesting witnesses signed in the presence of
the testator. This is a pure question of fact depending on appreciation of
evidence. The finding of the court below that the Will was duly attested is based
on a consideration of all the materials, and must be accepted; Naresh Charan v.
Paresh Charan, MANU/SC/0113/1954 : AIR 1955 SC 363.
The proposition canvassed is that under section 63 of the Indian Succession Act,
the Will must be attested by two or more witnesses and that a Sub-Registrar
while registering a Will presented to him by the testator cannot be regarded to
be an attesting witness; Makhan Mal v. Pritam Devi, AIR 1961 Punj 411.
Since the requirement of section 63 of Indian Succession Act is only that there
should be two attesting witnesses in the Will and that there is no insistence that
the attesting witnesses should be present at the same time, it is difficult to
extend the provisions of section 68 of the Evidence Act so as to make it
obligatory even when only one attesting witness is called and the propounder is
not in a position to call the other witness to elicit a fact which the attesting
witness called may not be in a position to speak honestly before the court. Such
an insistence would only be an addition of an unnecessary technicality and that
may lead to witness called for proving, execution and attestation of Wills
deposing falsehood before the court; K.M. Varghese v. K.M.
Oommen, MANU/KE/0020/1994 : AIR 1994 Ker 85.
In case the execution of a Will is shrouded in suspicion, its proof ceases to be a

simple lis between the plaintiff and the defendant. What generally, is an
adversary proceeding becomes in such cases a matter of the court's conscience
and then the true question which arises for consideration is whether the
evidence led by the propounder of the Will is such as to satisfy the conscience of
the court that the Will was duly executed by the testator. It is impossible to
reach such satisfaction unless the party which sets the Will offers a cogent and
convincing explanation of the suspicious circumstances surrounding the making
of the Will; Jaswant Kaur v. Amrit Kaur,MANU/SC/0530/1976 : AIR 1977 SC 74:
1977 (1) SCC 369:1977 (1) SCR 925
Where there are suspicious circumstances that Will was executed by a testator
having a feeble mind and disposition of property was unfair and the propounder
took leading role in the making of Will with benefits in his favour and these
circumstances are not rebutted properly, the Will is not a genuine Will of the
testator; Guro v. Atma Singh, 46 (1992) DLT 548 (SC).
The presence of suspicious circumstances makes the initial onus heavier and the
propounder must remove all legitimate suspicion before the document can be
accepted as the last Will of the testator; S. Venkatachala Iyengar v. B.N.
Thimmajamma, 1959 Suppl (1) SCR 426; Rani Purnima Devi v. Kumar
Khagendra Narayan Dev,MANU/SC/0020/1961 : 1962 (3) SCR 195; Jaswant
Kaur v. Amrit Kaur, MANU/SC/0530/1976 : AIR 1977 SC
74: MANU/SC/0530/1976 : (1977) 1 SCC 369: 1977 (1) SCR 925; Guro v. Atma
Singh, 46 (1992) DLT 548 (SC).
The questions whether Will is valid and genuine depends upon the facts of each
case. Where date of Will was not given it becomes doubtful whether Will was in
existence. Also, the operative part of Will was not signed by the testator. Only
one attesting witness was examined and evidence was not inspiring confidence.
Will was held not valid and genuine; Ishwar Dass Rajput v. Chaman Prakash
Puri, 46 (1992) DLT 619.
Where a testator admitted execution of the Will before a Sub-Registrar and

affixed his thumb impression, there was a proper execution of the Will, apart
from the question whether there was such proper execution before; Theresa v.
Francis, MANU/MH/0201/1920 : AIR 1921 Bom 156.
In a case, C was a relative of H and propounder of his Will under the alleged Will
of 'H', the entire property was bequeathed to C. C made her own Will only
twelve days after the death of H and therein stated that she was the nearest
heir of H and entitled to all his properties but did not make any reference
whatsoever to the Will of H. It was held that non-mention of his Will was a
pointer that his Will was not genuine; T.M. Channabasamma (dead) by LRs. v.
T.M. Rudriah (dead) by LRs.,MANU/KA/0106/1982 : AIR 1982 Kant 198.
The testator must be shown to have known what he was doing, with regard to
the contents and the execution of the Will. It is not the requirement of law that
he should enjoy perfect health. What is needed is that the testator must have
such a state of mind that he knew what he was doing. In the case of the
execution of a Will, the requirement is a sound mind. A sound state of health is
different from sound state of mind, which alone is legally required to validate the
Will; Papoo v. Kuruvilla, 1994 (2) KLT 278.
While relying upon the Supreme Court judgment, the Kerala High Court has held
that any and every circumstance cannot be taken as suspicious circumstance. A
circumstance would be suspicious only when it is not normal or is not normally
expected in a normal situation or is not expected of a normal person. In a case,
where the propounder let in evidence to prove the due execution of the Will, the
burden shifts on to the defendants to substantiate their case that the execution
of the Will is shrouded in suspicious circumstances. When the propounder of the
Will has discharged his initial onus, the caveator the person opposing the issue
of the probate, should prove the suspicious circumstances; Papoo v. Kuruvilla,
1994 (2) KLT 278; Indu Bala Bose v. Manindra Chandra
Bose, MANU/SC/0386/1981 : AIR 1982 SC 133.
Blind Testator
Where the testator is blind, the law only requires that he could have seen the
witnesses sign, had he not been blind.
64. Incorporation of papers by reference.-
If a testator, in a Will or codicil duly attested, refers to any other document then
actually written as expressing any part of his intentions, such document shall be
deemed to form a part of the Will or codicil in which it is referred to.
Of privileged Wills
65. Privileged Wills.-
Any soldier being employed in an expedition or engaged in actual warfare, or an

airman so employed or engaged, or any mariner being at sea, may, if he has
completed the age of eighteen years, dispose of his property by a Will made in
the manner provided in section 66. Such Wills are called privileged Wills.
Illustrations
(i) A, a medical officer attached to a regiment is actually employed in an

expedition. He is a soldier actually employed in an expedition, and can make a
privileged Will.
(ii) A is at sea in a merchant-ship of which he is the purser. He is a mariner,
and, being at sea, can make a privileged Will.
(iii) A, a soldier serving in the field against insurgents, is a soldier engaged in

actual warfare, and as such can make a privileged Will.
(iv) A, a mariner of a ship, in the course of a voyage, is temporarily on shore

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

considered as a soldier, and can make a privileged Will.
CASE LAW
Privileged Will
The Will executed by a person, although enlisted and undergoing training, a

week before he was actually sent overseas, cannot be accepted as privileged
Will; Simpson v. Bennet. AIR 1946 Oudh 73.
66. Mode of making, and rules for executing, privileged Wills.-
(1) Privileged Wills may be in writing, or may be made by words of mouth.
(2) The execution of privileged Wills shall be governed by the following rules:-
(a) The Will may be written wholly by the testator, with his own hand. In
such case it need not be signed or attested.
(b) It may be written wholly or in part by another person, and signed by

the testator. In such case, it need not be attested.
(c) If the instrument purporting to be a Will is written wholly or in part by

another person and is not signed by the testator, it shall be deemed to be
his Will, if it is shown that it was written by the testator's directions or
that he recognised it as his Will.
(d) If it appears on the face of the instrument that the execution of it in

the manner intended by the testator was not completed, the instrument
shall not, by reason of that circumstance, be invalid, provided that his
non-execution of it can be reasonably ascribed to some cause other than
the abandonment of the testamentary intentions expressed in the
instrument.
(e) If the soldier, airman or mariner has written instructions for the
preparation of his Will, but has died before it could be prepared and
executed such instructions shall be considered to constitute his Will.
(f) If the soldier, airman or mariner has, in the presence of two

witnesses, given verbal instructions for the preparation of his Will, and
they have been reduced into writing in his life-time, but he has died
before the instrument could be prepared and executed, such instructions
shall be considered to constitute his Will, although they may not have
been reduced into writing in his presence, nor read over to him.
(g) The soldier, airman or mariner may make a Will by word of mouth by
declaring his intentions before two witnesses present at the same time.
(h) A Will made by word of mouth shall be null at the expiration of one
month after the testator, being still alive, has ceased to be entitled to
make a privileged Will.
Of the Attestation, Revocation, Alteration and Revival of Wills
67. Effect of gift to attesting witness.-
A Will shall not be deemed to be insufficiently attested by reason of any benefit

thereby given either by way of bequest or by way of appointment to any person
attesting it, or to his or her wife or husband; but the bequest or appointment
shall be void so far as concerns the person so attesting or the wife or husband of
such person or any person claiming under either of them.
Explanation.-A legatee under a Will does not lose his legacy by attesting
a codicil which confirms the Will.
CASE LAW
Attestation of Will
In a case where the attesting witnesses' signatures appeared above the thumb
mark of the testator, it was held that the attestation was invalid as the
witnesses appear to have signed it even before the executant; Mangal Singh v.
Nathu Singh, MANU/SC/1297/1998 : (1998) 8 SCC 598. If attestation has
preceded the execution of the Will it is not valid. Attestation can only follow the
execution; Virendra Singh v. Kashibai, MANU/MP/0079/1998 : AIR 1998 MP 324
(DB). In a case, petition for grant of probate was filed. One of the attesting
witnesses proved the Will. Death certificate was proved. Publication was made.
There was no opposition. Probate was granted; Shanti Rani Jain v. State, 55
(1994) DLT 175.
In another case, the attestator neither affixed his thumb impression nor made
any mark on the Will. Some other person on his direction wrote attestator's
name on the Will. It was held that it does not amount to having been signed by
attestator within meaning of section 63(c) of Act of 1925. He was also not an
attesting witness under section 68 of Act of 1872. The Will was not proved to be
valid in law; Nagulapati Lakshmamma v. Mupparaju Subhaiah, 1998 (3)
Supreme 614:1998 AIR SCW 2254:MANU/SC/0282/1998 : (1998) 5 SCC 285:
1998 (2) SCALE 705: 1998 (2) UJ (SC) 46. Where attestation preceds the
execution by the testator, it is no valid attestation and the Will can not be given
effect to; Virendra Singh v. Kashibai, MANU/MP/0079/1998 : AIR 1998 MP 324.
Neither the registering officer nor the identifying witnesses before the registering
authority can be attesting witnesses to the document; Abdul Zabbar v. Venkata
Shastri, MANU/SC/0019/1969 : AIR 1969 SC 1147.
If the executant or attesting witnesses are not alive or available in relation to a

document, the genuineness of which is disputed, mode of proof as required
under section 69 of the Act is also not possible, the court should raise a
presumption under section 90 of the Act, in relation to due execution and
attestation of document, if it comes to the conclusion that the document is such
that it is likely to have been executed having regard to the common course of
human conduct and unnaturalness or correction or tampering with documents;
Haradhan Mahatha v. Dekhu Mahatha, MANU/BH/0016/1993 : AIR 1993 Pat
129. Presumption under section 90 of the Evidence Act applies to Wills also;
Venkata Ratnam v. Sitaramayya, MANU/AP/0089/1962 : AIR 1962 AP 29.
Where a witness to a registered Will says that the testator did not sign the Will
in his presence but that he attested the same on satisfaction that the signature
on the Will was that of the testator, the attestation would not be in accordance
with section 63 of the Indian Succession Act; Ammu v.
Krishna, MANU/KE/0013/1965 : AIR 1965 Ker 32.
A deed writer may be an attesting witness. However, it must be shown that he

put down his signature as an attestor to the document; Durga Dutt v. Chandran,
AIR 1956 HP 98.
There is also an additional requirement that each of the attesting witnesses shall
also sign the Will in the presence of the testator; Punni v.
Sumerchand,MANU/HP/0008/1995 : AIR 1995 HP 74; Girija Dutta Singh v.
Gangotri Datt Singh, AIR 1995 SC 346.
In order to prove due attestation of the Will, the propounder of the Will has to
prove that the two witnesses saw the testator signing the Will and that they
themselves signed the Will in the presence of the testator; Purna Bai v.
Ranchhoddas, MANU/AP/0042/1992 : AIR 1992 AP 270 (279).
Document writer can not be treated as an attesting witness for the Will to prove
its execution. J. Venkataraman v. V. Mathibooshanam, 1996 (3) CCC 91 (Mad).
None of the witnesses had deposed that the deceased testator had signed the
Will before them. None of them, except one, even deposed as to when the talk
about the execution of the Will was held. One of the witnesses, however,
deposed that the talk about the Will also took place at the time of the talk about
the adoption but he did not depose that the testator had signed the Will in his
presence. Hence, it was held difficult to accept that the Will fulfils the
requirements of section 68 of the Evidence Act, read with section 63 of the
Succession Act and section 3 of the Transfer of Property Act; Kashibai v.
Parwatibai, MANU/SC/0799/1995 : (1995) 6 SCC 213.
A Will to be valid, should be attested by two or more witnesses as per

requirement of law and at least one attesting witness should prove the Will
stating that each of the witnesses had signed the Will in the presence of the
testator; Ravishankar Lakhanlal Mishra v. Rajendra Kumar Dubey, 1999 (4) Civ
LJ 542.
Document writer
For proving the execution of Will, document writer cannot be treated as an

attesting witness; J. Venkataraman v. V. Mathibhushan, 1996 (3) CCC 91 (Mad).
In Jatinder Singh v. Smt. Amar Devi, 2009 (84) AIC 598 (P&H HC) the Punjab &
Haryana High Court has held that to prove the due execution of the Will, it is
required to be proved atleast by one of the attesting witnesses by examining
him before the court to establish that the Will was executed by the testator in
the presence of attesting witness and they had attested the same in the
presence of the testator. In case the Will is a registered one and endorsed by
Sub-Registrar, it is a presumption of truth regarding its due execution. However,
in case of suspicious circumstances, the test of satisfaction of judicial conscience
is evolved. Onus which lies on the propounder can be taken to be discharged on
proof of essential facts which go into making of the Will.
In Ram Autar v. Ram Naresh, 2009 (84) AIC 806, Madhya Pradesh High Court
has observed that the evidence of the only attesting witness has been examined
and it reveals from his testimony that he was called by Panchas where the
testator of the Will was also present. The writer of the document read over the
same to the testator and thereafter the testator put her thumb impression on
the Will. The witness also put his thumb impression on the Will and some other
persons also signed and put their thumb impression on the Will. In his testimony
nowhere it has been stated by him that the testator put her thumb impression in
the presence of the attesting witness. The court observed that it is gathered
from the evidence of this witness that the testator put her thumb impression on
the Will but in specific words, this witness has not stated that in his presence or
in the presence of other attesting witnesses, the testator put her thumb
impression or acknowledged her thumb impression. If inference is drawn that
testator put her thumb impression or acknowledged her thumb impression in
presence of the attesting witness, in the absence of evidence of the witness that
he also put his thumb impression in presence of the testator, the execution and
attestation of the Will is not at all proved. Execution of the Will cannot be said to
be proved in accordance with law unless and until attesting witnesses to the Will
depose that testator had signed before them and they had attested it. In
Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh, 2009 (4) MPLJ
1 Madhya Pradesh High Court has held that atleast one attesting witness has to
be examined by the propounder to prove the Will as per requirement of section
68 of the Evidence Act.
68. Witness not disqualified by interest or by being executor.-
No person, by reason of interest in, or of his being an executor of, a Will shall be
disqualified as a witness to prove the execution of the Will or to prove the
validity or invalidity thereof.
In Rur Singh(D) Th. LRs. v. Bachan Kaur, JT 2009 (2) SC 542, the Supreme
Court has observed that Will was executed bequeathing agricultural land in
favour of sons in exclusion of daughters which was scribed by Village Sarpanch
and witnessed by 10 witnesses in one go in the presence of each other. Out of
10 witnesses, one witness was beneficiary and other nine were independent
witnesses. Will was executed in the house of the testator where he had been
living jointly with his sons and the presence of his sons in the house was natural.
Order of mutation on the basis of Will in respect of land in one village was
passed in 1970, whereas testator had died in October, 1969 and that mutation
was not challenged. The suit was filed in 1983. The court held that attestation of
the Will by one of the beneficiaries does not mean that he had taken active part
in execution of the Will. In Lalitaben Jayantilal Popat v. Pragnaben Jamnadas
Kataria, 2009 (1) Supreme 339: 2009 (1) SCALE 328: 2009 (1) UC 441: 2009
(1) WLC (SC) CVL 638. It has been held by the Supreme Court that as per
section 63(c) of the Indian Succession Act, a Will is required to be attested by
two or more witnesses and this provision is mandatory in nature.
69. Revocation of Will by testator's marriage.-
Every Will shall be revoked by the marriage of the maker, except a Will made in
exercise of a power of appointment, when the property over which the power of
appointment is exercised would not, in default of such appointment, pass to his
or her executor or administrator, or to the person entitled in case of intestacy.
Explanation.-Where a man is invested with power to determine the

disposition of property of which he is not the owner, he is said to have
power to appoint such property.
70. Revocation of unprivileged Will or codicil.-
No unprivileged Will or codicil, nor any part thereof, shall be revoked otherwise
than by marriage, or by another Will or codicil, or by some writing declaring an
intention to revoke the same and executed in the manner in which an
unprivileged Will is hereinbefore required to be executed, or by the burning,
tearing, or otherwise destroying the same by the testator or by some person in
his presence and by his direction with the intention of revoking the same.
Illustrations
(i) A has made an unprivileged Will. Afterwards, A makes another unprivileged

Will which purports to revoke the first. This is a revocation.
(ii) A has made an unprivileged Will. Afterwards, A being entitled to make a

privileged Will makes a privileged Will, which purports to revoke his unprivileged
Will. This is a revocation.
CASE LAW
The testator intended to give properties for religious and charitable purposes.
That intention had been reiterated in the last Will as well. The bequest to charity
under the last Will failed only because of section 118 of the Succession Act.
Consequent on that if the revocatory clause is given its full effect, it will defeat
the intention of the testator. A probate court is not to resort to an interpretation
which will patently go to defeat the testator's wishes, in fact, when the testator
had in unmistakable terms expressed his intention to bequeath his properties for
religious and charitable purposes; Papoo v. Kuruvilla, 1994 (2) KLT 278.
Revocation of Will
The general principle of law is that a joint Will is revocable at any time by either
of the testators during their joint life or after the death of any one of them by
the survivor; P. Krishnan v. Lakshmi Ammal, 1990 (1) CCC 478.
For proving that the Will had been revoked, it has to be shown that the testator
had made another Will or codicil or by some writing declared his intention to
revoke the Will; Anil Behari Ghosh v. Latika Bala Dassi, MANU/SC/0078/1955 :
AIR 1955 SC 566 (573): 1955 (2) Mad LJ (SC) 84:1955 SCA 1026:1955 SCJ
578:MANU/SC/0078/1955 : 1955 (2) SCR 270.
When the deed of revocation of Will has been admitted in evidence without
objection, propounder cannot contend that document was not executed by
testatrix; Aamal Das Gupta v. Dwijendra Lal Das Gupta, MANU/WB/0053/1992 :
AIR 1992 Cal 341.
71. Effect of obliteration, interlineation or alteration in unprivileged Will.-
No obliteration, interlineation or other alteration made in any unprivileged Will

after the execution thereof shall have any effect, except so far as the words or
meaning of the Will have been thereby rendered illegible or undiscernible, unless
such alteration has been executed in like manner as hereinbefore is required for
the execution of the Will:
Provided that the Will, as so altered, shall be deemed to be duly executed if the
signature of the testator and the subscription of the witnesses is made in the
margin or on some other part of the Will opposite or near to such alteration, or
at the foot or end of or opposite to a memorandum referring to such alteration,
and written at the end or some other part of the Will.
72. Revocation of privileged Will or codicil.-
A privileged Will or codicil may be revoked by the testator by an unprivileged

Will or codicil, or by any act expressing an intention to revoke it and
accompanied by such formalities as would be sufficient to give validity to a
privileged Will, or by the burning, tearing or otherwise destroying the same by
the testator, or by some person in his presence and by his direction, with the
intention of revoking the same.
Explanation.-In order to the revocation of a privileged Will or codicil by an

act accompanied by such formalities as would be sufficient to give validity
to a privileged Will, it is not necessary that the testator should at the
time of doing that act be in a situation which entitles him to make a
privileged Will.
73. Revival of unprivileged Will.-
(1) No unprivileged Will or codicil, nor any part thereof, which has been revoked
in any manner, shall be revived otherwise than by the re-execution thereof, or
by a codicil executed in manner hereinbefore required, and showing an intention
to revive the same.
(2) When any Will or codicil, which has been partly revoked and afterwards
wholly revoked, is revived, such revival shall not extend to so much thereof as
has been revoked before the revocation of the whole thereof, unless an intention
to the contrary is shown by the Will or codicil.
Of the construction of Wills
74. Wording of Will.-
It is not necessary that any technical words or terms of art be used in a Will, but
only that the wording be such that the intentions of the testator can be known
therefrom.
CASE LAW
Wordings of a Will
In making of a Will, if technical words are used, then they should be prima facie
understood to have been used in the ordinary sense; Lalit Mohan v. Chukkanlal,
ILR 24 Cal 834.
A Will must be construed as a whole to give effect to the manifest intention of

the testator; Nathu v. Debi Singh, AIR 1966 Punj 226.
There is no gain saying 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; Rajrani Sehgal
v. Dr. Parshottam Lal, 46 (1992) DLT 263.
In determining the real intention of the testator, the entire document has to be
considered as a whole. No word, phrase or clause should be ignored; Mandala
Madhava Rao v. Mandala Yadagiri, MANU/AP/0359/2001 : AIR 2001 AP 407.
Registration/Non-Registration
Mere non-registration can not create inference against the Will; Ammo
Balachandran v. Oti Joseph, MANU/TN/0083/1996 : AIR 1996 Mad 442.
At best registration of a Will though not required by law is only a piece of

evidence of the execution. But, it cannot have any greater sanctity; Vattakam
Purath Parambil Ananda Bai v. Kanoka Bai, MANU/KE/0040/1995 : AIR 1995 Ker
208.
A Will was registered eight years prior to the death of testator. Objection was
not sustainable; Gopalan Nambiar (P.P.K.) v. Balkrishnan Nambiar
(P.P.K.),MANU/SC/0354/1995 : AIR 1995 SC 1852.
Registration of Will does not change the onus of proof from its propounder to the
challenger; Vattakam Purath Parambil Ananda Bhai v. Kanaka
Bhai; MANU/KE/0040/1995: AIR 1995 Ker 208.
Registration of the Will by itself is not sufficient to remove the suspicion; Gurdial
Kaur v. Kartar Kaur, MANU/SC/0271/1998 : AIR 1998 SC 2861: 1998 AIR SCW
1695: 1998 (2) CCC 421: JT (1998) 3 SC 37: MANU/SC/0271/1998 : (1998) 4
SCC 384: 1998 (2) SCALE 649: 1998 (3) Supreme 504: 1998 (1) UJ (SC) 677.
In Tajinder Singh v. Ram Murti, Lamberdar, 2010 (90) AIC 678, the Himachal
Pradesh High Court has held that mere registration of Will is not sufficient to
hold that a valid Will was executed. The brief facts involved are that one Sohan
Singh was the original owner of the land. He died on 13-12-1993. Mutation was
entered in favour of Tajinder Singh and Harinder Singh on the basis of a
Registered Will executed on 3-6-1987. The legal heirs of Gurnam Singh, pre-
deceased son of Sohan Singh claimed that right in the property alleging that the
Will in question is a forged document. According to Tajinder Singh & Harinder
Singh, Gurnam Singh was not the son of Sohan Singh. They alleged that Sohan
Singh was residing with their father Mohinder Singh who had rendered services
to the testator and as such the Will was executed by him in their favour. The
court observed that Will is not genuine as the said Tajinder Singh and Harinder
Singh have failed to explain the various suspicious circumstances and held that
Gurnam Singh was son of Sohan Singh and these observations were confirmed
by the District Judge in appeal. The High Court in appeal observed that the
averment of Tajinder Singh and Harinder Singh that Gurnam Singh was not son
of Sohan Singh is wrong as the documents produced in evidence by Tajinder
Singh & Harinder Singh (as defendants in the civil suit) reveal that Gurnam
Singh was son of Sohan Singh. In fact the documents show that Sohan Singh
had executed a Will Ext.P-3 in favour of Gurnam Singh and this fact is admitted
by the defendants. The said Ext.P-3 Will was cancelled vide Ext.PW-10/A by
Sohan Singh on 28-1-1986 and thereafter he executed a Will Ext. D-5 on the
basis of which defendants claimed to have become owner of the suit property.
Even the mutation order dated 25-4-1994 reveal that Sohan Singh had a wife
Kashmiro Devi and from this wed-lock a son Gurnam Singh was born. The court
observed that obviously there are various discrepancies in the statements of
witnesses produced by the defendants before the civil court and contrary. No
doubt the stamped endorsements on the rear of the Will indicates that the Will
was read over and explained to Sohan Singh by the Registrar but the Registrar
was not examined by the propounder of the Will. Accordingly appeal was
dismissed.
Registration of the Will may prove its genuineness but that by itself does not
dispell the circumstances full of suspicion at the time of execution of the Will;
Vattakam Purath Parambil Ananda Bai v. Kanaka Bhai, MANU/KE/0040/1995 :
AIR 1995 Ker 208.
Where registration of Will was refused and no steps had been taken for setting
aside the refusal order, claim can be based on the Will before Civil Court; Anant
Ram v. Shauli, 1999 (2) Civ LJ 699.
75. Inquiries to determine questions as to object or subject of Will.-
For the purpose of determining questions as to what person or what property is

denoted by any words used in a Will, a Court shall inquire into every material
fact relating to the persons who claim to be interested under such Will, the
property which is claimed as the subject of disposition, the circumstances of the
testator and of his family, and into every fact a knowledge of which may conduct
to the right application of the words which the testator has used.
Illustrations
(i) A, by his Will, bequeaths 1,000 rupees to his eldest son or to his youngest
grand-child, or to his cousin, Mary; a Court may make inquiry in order to
ascertain to what person the description in the Will applies.
(ii) A, by his Will, leaves to B "my estate called Black Acre." It may be necessary
to take evidence in order to ascertain what is the subject-matter of the bequest;
that is to say, what estate of the testator's is called Black Acre.
(iii) A, by his Will, leaves to B "the estate which I purchased of C". It may be
necessary to take evidence in order to ascertain what estate the testator
purchased of C.
CASE LAW
Construction of Will
In the matter of construction between an ordinary deed and a Will there is

striking difference in as much as in construing a Will it should be remembered
that a testator is supposed to be wanting in advise whereas a deed is drawn up
in a certain form familiar to professional adviser; Navneet Lal v.
Gokul, MANU/SC/0328/1975 : (1976) 1 SCC 630; Ram Gopal v. Nand Lal, AIR
1951 SC 139: 1950 SCJ 575: MANU/SC/0044/1950 : 1950 SCR 766; Gnanambal
Ammal v. T. Raju Ayyar, MANU/SC/0045/1950 : AIR 1951 SC 103; Raj Bajrang
Bahadur Singh v. Thakurain Bakhraj Quer, MANU/SC/0081/1952 : AIR 1953 SC
7:1952 SCJ 655: 1953 All LJ 49: 1953 SCR 232: 1953 SCA 369; Pearey Lal v.
Rameswer Das, MANU/SC/0398/1962 : AIR 1963 SC 1703: 1964 (1) SCJ 85:
1964 Supp (2) SCR 834; Ramachandra Shenoy v. Hilda
Brite, MANU/SC/0248/1963 : AIR 1964 SC 1323: 1964 SCD 47: 1964 (1) Andh
LT 383: MANU/SC/0248/1963 : 1964 (2) SCR 722; Narayan Anandam v.
Rakesh, AIR 1995 Ker 205.
76. Misnomer or misdescription of object.-
(1) Where the words used in a Will to designate or describe a legatee or a class
of legatees sufficiently show what is meant, an error in the name or description
shall not prevent the legacy from taking effect.
(2) A mistake in the name of a legatee may be corrected by a description of him,

and a mistake in the description of a legatee may be corrected by the name.
Illustrations
(i) A bequeaths a legacy "to Thomas, the second son of my brother John". The
testator has an only brother named John, who has no son named Thomas, but
has a second son whose name is William. William will have the legacy.
(ii) A bequeaths a legacy "to Thomas, the second son of my brother John". The
testator has an only brother, named John, whose first son is named Thomas and
whose second son is named William. Thomas will have the legacy.
(iii) The testator bequeaths his property "to A and B, the legitimate children of
C". C has no legitimate child, but has two illegitimate children, A and B. The
bequest to A and B takes effect, although they are illegitimate.
(iv) The testator gives his residuary estate to be divided among "my seven
children" and, proceeding to enumerate them, mentions six names only. This
omission Will not prevent the seventh child from taking a share with the others.
(v) The testator, having six grandchildren, makes a bequest to "my six
grandchildren" and proceeding to mention them by their Christian names,
mentions one twice over omitting another altogether. The one whose name is
not mentioned will take a share with the others.
(vi) The testator bequeaths "1,000 rupees to each of the three children of A". At
the date of the Will A has four children. Each of these four children will, if he
survives the testator, receive a legacy of 1,000 rupees.
77. When words may be supplied.-
Where any word material to the full expression of the meaning has been
omitted, it may be supplied by the context.
Illustration
The testator gives a legacy of "five hundred" to his daughter A and a legacy of
"five hundred rupees" to his daughter B. A will take a legacy of five hundred
rupees.
78. Rejection of erroneous particulars in description of subject.-
If the thing which the testator intended to bequeath can be sufficiently identified
from the description of it given in the Will, but some parts of the description do
not apply, such parts of the description shall be rejected as erroneous, and the
bequest shall take effect.
Illustrations
(i) A bequeaths to B "my marsh-lands lying in L and in the occupation of X". The
testator had marsh-lands lying in L but had no marsh-lands in the occupation of
X. The words "in the occupation of X" shall be rejected as erroneous, and the
marsh-lands of the testator lying in L will pass by the bequest.
(ii) The testator bequeaths to A "my zamindari of Rampur". He had an estate at

Rampur but it was a taluq and not a zamindari. The taluq passes by this
bequest.
CASE LAW
In order to effectuate the intention as gathered from the contents of the Will,
the court will be justified in reading the Will in the correct form as expressing
the intended meaning; Sajanibai v. Surajmal, 1985 MP LJ 227.
Genuineness of Will
Genuineness of a Will was challenged stating several circumstances as

suspicious but ultimately Will was upheld and probated, Radha Rani Devi v.
Kadambini Devi,MANU/OR/0025/1995 : AIR 1995 Ori 88; Indubala Bose v.
Manindra Chandra Bose, MANU/SC/0386/1981 : AIR 1982 SC 133: (1982) 1
SCC 20:1982 UJ (SC) 7:1982 (1) SCJ 132:MANU/SC/0386/1981 : 1982 (1) SCR
1188.
Mere delay in applying for letter of administration is not fatal to raise any
suspicion; Laxmi Bai v. Chandrabai, AIR 1995 Ori 131; Shakuntala Devi v.
Savitri Devi,MANU/HP/0009/1997 : AIR 1997 HP 43.
Where cogent reasons are given for exclusion of daughters, it cannot create any
doubt about genuineness of the Will; Sumitra Devi v. State, AIR 1999 Del 226.
79. When part of description may not be rejected as erroneous.-
If a Will mentions several circumstances as descriptive of the thing which the

testator intends to bequeath, and there is any property of his in respect of which
all those circumstances exist, the bequest shall be considered as limited to such
property, and it shall not be lawful to reject any part of the description as
erroneous, because the testator had other property to which such part of the
description does not apply.
Explanation.-In judging whether a case falls within the meaning of this

section, any words which would be liable to rejection under section 78
shall be deemed to have been struck out of the Will.
Illustrations
(i) A bequeaths to B "my marsh-lands lying in L and in the occupation of X". The
testator had marsh-lands lying in L, some of which were in the occupation of X,
and some not in the occupation of X. The bequest will be considered as limited
to such of the testator's marsh-lands lying in L as were in the occupation of X.
(ii) A bequeaths to B "my marsh-lands lying in L and in the occupation of X,

comprising 1,000 bighas of lands". The testator had marsh-lands lying in L some
of which were in the occupation of X and some not in the occupation of X. The
assessment is wholly inapplicable to the marsh-lands of either class, or to the
whole taken together. The measurement will be considered as struck out of the
Will, and such of the testator's marsh-lands lying in L as were in the occupation
of X shall alone pass by the bequest.
CASE LAW
Suspicious circumstances
The testatrix was aged about 86 years and had put her thumb impression on the
Will. Admittedly she could speak Gurmukhi and Hindi languages and could sign
in Gurmukhi. It was held that testatrix was in sound disposing mind at the time
of execution of Will and alleged suspicious circumstances pleaded by
respondents were without merit; Bhushan Kumar Dewan v. State, 84 (2000)
DLT 679.
In one case, the Supreme Court has held that there was evidence of scriber and
attesting witnesses that testator of his own volition executed Will in favour of
respondent daughter. Earlier Will executed in favour of appellants had been
specifically revoked. The plea that testator was physically incapable of executing
second Will since he had thumb marked it whereas earlier Will had been signed
by him, was held not tenable in absence of evidence showing that testator was
unconscious at the time of execution of second Will which had been held to be
genuine by the Court; Daulat Ram v. Sodha, AIR 2005 SC 233: 2004 AIR SCW
6523: 2005 (1) All CJ 672: 2005 (1) CCC 471:MANU/SC/0969/2004 : (2005) 1
SCC 40: 2004 (9) SCALE 442: 2004 (8) Supreme 1: 2005 (1) UJ (SC) 202.
In another case the Court has held that bequeath in favour of grandsons and
their children excluding the natural heirs is not a suspicious circumstance when
there were sufficient and valid reasons for same. It was also, held that affixation
of additional thumb impression because earlier thumb marks were smudged
cannot be treated as suspicious circumstances. Non-seeking of probate would
not be suspicious circumstances as the whole property under Will was in
possession of the beneficiaries. The testator who was suffering from enlarged
prostrate glands and not going to office of Notary cannot be treated as
suspicious circumstances. One of propounder was alleged to have taken active
part in execution of Will but he was neither beneficiary under Will nor under
codicil, his presence would be immaterial and cannot be treated as suspicious
circumstances. The fact that one of marginal witness was not able to assert from
where testator got Will and codicil typed cannot be taken as suspicious
circumstance for annulment of testamentary disposition; Jaswinder Singh v.
Kartar Singh (D) by LRs, AIR 2005 P&H 19: 2004 (3) CCC 80.
In one case, the objector raised plea of suspicious circumstances. It was held
that the propounder of Will would have to offer cogent and convincing
explanation. Registration of Will by itself is not sufficient to conclude that Will is
genuine. Genuineness of Will is a question of fact depending on appreciation of
evidence. Plea of registration being perfunctory is not tenable as scribe of Will,
lawyer and also attesting witness satisfy as to reading over of Will to testator in
presence of Sub-Registrar and testator admitting execution and correctness of
Will in presence of Sub-Registrar, despite the fact that witness was not
questioned of said aspect. No suggestion was made to testator being not aware
of contents of Will or that witness never read over contents of Will to testator in
presence of Sub-Registrar. Testator was matriculate of old days, and thus, not
illiterate. It cannot be said that registration was perfunctory or that Sub-
Registrar did not satisfy himself that testator was aware of contents of Will.
Bequeathing of property to eldest son, excluding other son and divorcee
daughter had reasons duly proved. Execution of Will was proved. Its contents
and manner of disposition of property could not be considered and probate
cannot be refused. The plea of absence of identification of testator before Sub-
Registrar was held untenable as Will was attested by two witnesses and lawyer
who knew the testator. Non-examination of certain heir by propounder does not
make the Will genuine. Plea of suspicious circumstances must be pleaded and
urged before probate court and it cannot be pleaded for first time before
appellate court; S. Amarjit Singh v. State, AIR 1999 Del 33; Kalyan Singh v.
Chooti, AIR 1990 SC 396: JT 1989 (4) SC 439; Ram Piari v. Bhagavant, AIR
1990 SC 1742: 1990 (1) Rev LR 357: JT (1990) 1 SC 420.
It has also been held that active participation and execution of Will by
propounders/beneficiaries is not sufficient to create any doubt either about
testamentary capacity or genuineness of Will. Also the fact that natural heirs
were excluded and legally wedded wife was given lesser share is not a
suspicious circumstance. The fact that the testator brought draft Will when he
went to the document writer and asked him to scribe the same is not a
suspicious circumstance; Pentakota Satyanarayana v. Pentakota
Seetharatnam, MANU/SC/0819/2005 : AIR 2005 SC 4362: (2005) 8 SCC 67:
2005 (7) SCJ 173: 2005 (7) SCALE 682: 2005 (8) Supreme 666.
In one case, the Delhi High Court has held that there was variation in testimony
of witnesses to the Will and scribe, conflicting versions pertaining to typing of
the Will by the typist, variation on issue of time when Will came into existence
and executed, place of signatures on last page of Will showing that pre-signed
pages were utilized. Objection led evidence to show their title to property
described in the Will. Petitioners failed to prove that Will in question was last
Will, hence probate could not be granted by the Court; Surender Patrick Lall v.
State, AIR 2005 Del 379: 2005 (118) DLT 647.
All the attestors are to be examined when the Will is executed in suspicious
circumstances; Addepalli Venkata Lakshmi v. Ayinampudi Narasimha Rao, 1993
(3) ALT 54 (NRC).
In one case the Karnataka High Court has held that the mere fact that plaintiff
has adopted a child and was allotted lion share in property as compared to share
given to defendant who is genetive son of Y, cannot by itself be construed as
suspicious circumstance. It was held that three of attestators were dead, scribe
was also dead. The persons acquainted with signatures of attestators identified
their signatures. The Will was held proved as per section 90 of Evidence Act;
Sulochana Tai v. Sunder, AIR 2005 Karn 226: 2005 (33) All Ind Cas 192.
Though, it is the duty of the propounder of the Will to prove the Will and to
remove all the suspected features, they must be real, germane and valid
suspicious features and not fantasy of doubt in mind; Gopalan Nambair v.
Balakrishna Nambiar Ramalu, MANU/SC/0354/1995 : AIR 1995 SC 1852.
The facts and circumstances of the Will revealed the question of disproportionate
bequeath in favour of the plaintiff. But testator had already partitioned his entire
property and given it to all his legal heirs. The property covered under Will had
been kept for himself for his existence. Plaintiff had been living with him during
his life-time. Bequeathing substantial portion to him could not be stated to be
unnatural or disproportionate. The Will was duly registered and its execution was
duly proved by evidence of attesting witnesses. The delay in seeking letter of
Administration was duly explained hence, the execution of Will could not be
doubted; Augustions v. Joseph,MANU/KE/0226/2005 : AIR 2005 Ker 204 (Ker
HC).
Merely because testator had not signed all pages, it cannot be a suspicious
circumstance; Ammu v. Joseph, MANU/TN/0083/1996 : AIR 1996 Mad 442.
Where the Will is of two pages and on each page signature of the testator differ
and ink is also of different colour, it is a suspicious circumstance; Chandrabati v.
Laxmi Devi,MANU/OR/0072/1991 : AIR 1991 Ori 289.
When the Will has not been read over and explained to the testator in the
presence of attestor, nor had he put his signature after having got
acknowledgement of the due execution of the Will, the court may make
inference that Will is made in suspicious circumstances; Punni v. Sumer
Chand, MANU/HP/0008/1995 : AIR 1995 HP 74.
In a case, the Will, surrounded by suspicious circumstances but probate was

obtained by playing fraud on court. Same was held nullity and could be
challenged at any stage. Bar of limitation is not attracted; Radhika Khanna v.
State, 91 (2001) DLT 96.
A Will was attested by two witnesses. The scribe also attested Will. Scribe was
examined as witness in proof of Will. Examination of scribe amounted to an
examination of attesting witness. Ground that beneficiary was present at the
time of execution of Will does not create any suspicious circumstance. Plea that
testator disinherited his own son is not tenable since property under disputed
Will was personal property of testator and 'Kuttalai' (endowment) property
through another Will was bequeathed. Disputed Will and another Will were
executed on same day and got registered. The ground that another Will
executed in favour of sons, was held not sufficient to create suspicious
circumstance. Gift of property to deity (Kuttalai grant) was with right of
management to second wife alongwith her heirs. The widow bequeathed right to
son of testator. He, in turn, bequeathed right to his son-in-law. Suit was filed by
sons that right could not have been willed away to a stranger to family and it
could have been only in favour of lineal descendants of original donor. It was
held that the original settlor had not reserved right of management and
trusteeship of properties donated to temple for his lineal descendants. Absolute
right was conferred on his second wife to select her successor. Her successor
likewise had absolute right to choose his successor. The Will in question was
held to be absolutely valid; Palanivelayutham Pillai v. Ramachandran, 2000 (4)
Supreme 754.
The facts of the case revealed that the testator had three daughters and four
sons. The property was bequeathed in favour of two sons and the daughters
were excluded. However, reasons were given for making equal distribution. The
Court held that merely because testator was aged 80 years and he died 15 days
after execution of Will, cannot be taken as suspicious circumstance, as both
attesting witnesses had proved sound and deposing state of testator. The Will
was also proved by handwriting expert. Hence it was duly executed; Sridevi v.
Shetty, MANU/SC/0065/2005 : AIR 2005 SC 780.
The facts revealed that the Will in question had been drafted on instructions of
person who was not produced in the court as witness. The testator being infirm
and in poor health had died shortly after alleged execution of document. Glaring
contradictions and discrepancies were found in evidence of witness. There was
no medical certificate on record. The Will could not be said to have been proved;
Satish Chander Sabharwal v. State, AIR 2005 Del 125: 2004 (77) DRJ 675.
In a case there was nothing unnatural about contents of the Will. Hence, the
mere fact that the testatrix made a Will at the age of fifty could not be
considered suspicious circumstance reflecting on genuineness of the Will; More
(V.S.) v. Ganaeshkar (R.V.), MANU/SC/0412/1995 : AIR 1995 SC 2086.
The propounder of the Will is required to remove the suspicion from the mind of
the court by positive, cogent and satisfactory evidence; Jamuna Bai v. Surendar
Kumar,MANU/MP/0068/1995 : AIR 1995 MP 274. Will cannot be discarded on
the ground that the testatrix was an old lady or that the natural heirs were
excluded or that marginal witnesses were chance witnesses or that no local
witness was examined; Gun Parkash v. Bhola Nath, MANU/HP/0007/1997 : AIR
1997 HP 27; Santosh Kakkar v. Ram Prasad, 71 (1998) DLT 147 (Del HC).
In one case, the Will was executed by testatrix in favour of petitioner son
excluding other sons. The petitioner actively participated in execution of Will by
becoming attesting witness as well as procuring two witnesses who were his
associates. The Court held that the Will, not free from suspicious circumstances;
Mohan Singh v. Ishar Singh (deceased by LRs), AIR 2005 P&H 79: 2004 (2)
Hindu LR 385: 2005 (1) Land LR 645: 2004 (4) Rec Civ R 271.
The Apex Court has held that simply because testator had signed some of pages
twice was not a good ground to hold that the Will was suspicious; Hazara Baradri
v. Lokesh Dutta Multani, MANU/SC/2024/2005 : AIR 2006 SC 370: (2005) 13
SCC 278: 2005 (8) SCJ 574: 2005 (9) SCALE 407: 2005 (8) Supreme
102: MANU/SC/2024/2005 : 2005 (13) SCC 278.
In one case the Court has held that an unregistered Will, by itself, cannot be
taken as made under suspicious circumstance to disprove it, particularly when
attesting witness identified signature in the Will and deposed that it was drafted
in his presence and he had seen the attestor attesting the Will; Narukurti
Sundaramma v. Pendurthi Venkata Rao, AIR 2006 (NOC) 499 (AP HC).
In one case a Will in favour of nephews excluding legal heirs has been discussed
and decided by the Court. The witnesses produced by nephews made
contradictory versions. The attesting witness did not know the contents of Will
though he was all alongwith testator during entire period of execution of Will.
The doctor's certificate showed that the testator could not be said to be a stable
man because of his physical and mental state of health and he was not
concerned about his acts and omissions. The Will could not be said to be
executed under suspicious circumstances; Pradip Saikia v. Suwala
Saikia, MANU/GH/0129/2005 : AIR 2006 Gau 56.
The circumstances revealed that the examination of scribe and one attesting
witness proved that they were present in house of testator at the time of
execution of the Will which was signed with same pen by attesting witness and
executants. No evidence was led to prove that propounder was present at the
time of execution of the Will. No suspicious circumstance could be attributed.
The propounder was only a coparcener. Will was held to be genuine; K.
Munirathnam Naidu v. K. Aadi Lakshmamma, AIR 2006 (NOC) 658 (APHC).
In K. Laxmanan v. Thekkayil Padmini, 2009 (74) AIC 75 (SC), it has been held
by the Supreme Court that to meet the requirement of section 68 of the
Evidence Act, burden lies on the propounder of the Will by producing atleast one
of the attesting witnesses in evidence. If there are any suspicious circumstances
surrounding the Will, burden lies upon the propounder of the Will to remove
those suspicions to the satisfaction of the Court. If none of the attesting
witnesses are available or are not in a position to give evidence, the propounder
to prove the Will by producing other witnesses. In the case, the facts are that
one of the attesting witnesses had died and the other had become dumb. The
propounder of the Will has examined DW4, the son of one of the attesting
witnesses who verified only the signatures of his father but did not depose that
his father was one of the attesting witnesses- Similarly, the other witness DW3,
the identifying witness did not state, at all, that he had witnessed the execution
of the Will. Moreover, no attempt was made by the appellant to prove the
mental and physical fitness of the testator at the time of the alleged execution of
the Will. On the other hand the respondents had proved that their father, the
testator, was 82 years of age and was not in a good state of mental and physical
health. Besides, there was vast difference in the signature of the testator on
various pages of the Will. In such circumstances, the Supreme Court has
observed that there is no error in the view taken by the first Appellate Court and
High Court that the appellant had not only-failed to prove the due execution of
the Will, but he had not made any attempt to remove the suspicious
circumstances surrounding the Will.
Entire Property
The entire property was given to one of the three daughters through a Will but
no reason to exclude the other two daughters was given and the husband of
propounder had taken active role in preparation and registration of the Will. In
these circumstances the Will was not accepted; Narayanamma v. Mayamma,
1999 (4) Civ LJ 123(Kar).
80. Extrinsic evidence admissible in cases of patent ambiguity.-
Where the words of a Will are unambiguous, but it is found by extrinsic evidence
that they admit of application, one only of which can have been intended by the
testator, extrinsic evidence may be taken to show which of these applications
was intended.
Illustrations
(i) A man, having two cousins of the name of Mary, bequeaths a sum of money
to "my cousin Mary". It appears that there are two persons, each answering the
description in the Will. That description, therefore, admits of two applications,
only one of which can have been intended by the testator. Evidence is
admissible to show which of the two applications was intended.
(ii) A, by his Will leaves to B "my estate called Sultanpur Khurd". It turns out
that he had two estates called Sultanpur Khurd. Evidence is admissible to show
which state was intended.
81. Extrinsic evidence inadmissible in case of patent ambiguity or deficiency.-
Where there is an ambiguity or deficiency on the face of a Will, no extrinsic

evidence as to the intentions of the testator shall he admitted.
Illustrations
(i) A man has an aunt, Caroline, and a cousin, Mary, and has no aunt of the
name of Mary. By his Will he bequeaths 1,000 rupees to "my aunt, Caroline" and
1,000 rupees to "my cousin, Mary" and afterwards bequeaths 2,000 rupees to
"my before-mentioned aunt, Mary". There is no person to whom the description
given in the Will can apply, and evidence is not admissible to show who was
meant by "my before-mentioned aunt, Mary". The bequest is, therefore, void for
uncertainty under section 89.
(ii) A bequeaths 1,000 rupees to..................leaving a blank for the name of the
legatee. Evidence is not admissible to show what name the testator intended to
insert.
(iii) A bequeaths to B....................................rupees, or "my estate

of........................". Evidence is not admissible to show what sum or what
estate the testator intended to insert.
82. Meaning of clause to be collected from entire Will.-
The meaning of any clause in a Will is to be collected from the entire instrument,
and all its parts are to be construed with reference to each other.
Illustrations
(i) The testator gives to B a specific fund or property at the death of A, and by a
subsequent clause gives the whole of his property to A. The effect of the several
clauses taken together is to vest the specific fund or property in A for life, and
after his decease in B; it appearing from the bequest to B that the testator
meant to use in a restricted sense the words in which he describes what he gives
to A.
(ii) Where a testator having an estate, one part of which is called Black Acre,
bequeaths the whole of his estate to A, and in another part of his Will bequeaths
Black Acre to B, the latter bequest is to be read as an exception out of the first
as if he had said, "I give Black Acre to B, and all the rest of my estate to A".
CASE LAW
Inconsistent clauses-their effect
When two clauses of Will are irreconcilable so that they cannot possibly stand
together, the last shall prevail; Kaivelikkal Ambunhi dead by L.Rs. v. H. Ganesh
Bhandary,MANU/SC/0505/1995 : AIR 1995 SC 2491; (1995) 3 SCC (Supp) 541:
1995 AIR SCW 3667
In case testator has given absolute title to the legatee but has put restriction on
legatee's right to sell the property of the testator, such restriction is liable to be
ignored as being repugnant to the real intention of the testator; Rajrani Sehgal
v. Dr. Parshottam Lal, AIR 1992 Del 134.
Where through a Will mother has bequeathed to the petitioner compensation

amount awarded to her, the petitioner being sole legatee is intended to execute
the award and Claims Tribunal has jurisdiction; Laxmanan v. Motor Accidents
Claims Tribunal, MANU/KE/0019/1993 : AIR 1993 Ker 82 (83); Suram Indira
Devi v. Suram Bhoodevi,MANU/AP/0758/1999 : 1999 (5) ALT 745.
83. When words may be understood in restricted sense, and when in sense

wider than usual.-
General words may be understood in a restricted sense where it may be

collected from the Will that the testator meant to use them in a restricted sense;
and words may be understood in a wider sense than that which they usually
bear, where it may be collected from the other words of the Will that the
testator meant to use them in such wider sense.
Illustrations
(i) A testator gives to A "my farm in the occupation of B", and to C" all my
marsh-lands in L". Part of the farm in the occupation of B consists of marsh-
lands in L, and the testator also has other marsh-lands in L. The general words,
"all my marsh-lands in L", are restricted by the gift to A. A takes the whole of
the farm in the occupation of B, including that portion of the farm which consists
of marsh-lands in L.
(ii) The testator (a sailor on ship-board) bequeathed to his mother his gold ring,
buttons and chest of clothes, and to his friend, A (ashipmate) his red box, clasp-
knife and all things not before bequeathed. The testator's share in a house does
not pass to A under this bequest.
(iii) A, by his Will, bequeathed to B all his household furniture plate, linen, china,
books, pictures and all other goods of whatever kind; and afterwards
bequeathed to B a specified part of his property. Under the first bequest B is
entitled only to such articles of the testator's as are of the same nature with the
articles therein enumerated.
84. Which of two possible constructions preferred.-
Where a clause is susceptible of two meanings according to one of which it has

some effect, and according to the other of which it can have none, the former
shall be preferred.
85. No part rejected, if it can be reasonably construed.-
No part of a Will shall be rejected as destitute of meaning if it is possible to put a

reasonable construction upon it.
86. Interpretation of words repeated in different parts of Will.-

If the same words occur in different parts of the same Will, they shall be taken
to have been used everywhere in the same sense, unless a contrary intention
appears.
87. Testator's intention to be effectuated as far as possible.-
The intention of the testator shall not be set aside because it cannot take effect
to the full extent, but effect is to be given to it as far as possible.
Illustration
The testator by a Will made on his death-bed bequeathed all his property to C.D.
for life and after his decease to a certain hospital. The intention of the testator
cannot take effect to its full extent because the gift to the hospital is void under
section 118, but it will take effect so far as regards the gift to C.D.
CASE LAW
The court should adopt that construction which will give effect to each and every
disposition. All possible efforts should be made to give to the provisions of the
Will an effective and consistent meaning. In construing the language of the Will,
court is entitled to put itself into the testator's arm-chair and is bound to bear in
mind all circumstances which the testator would have taken into consideration
while making the disposition. The true intention of the testator has to be
gathered from the reading of the whole Will. The effort of the court must be to
give effect to the expression made by the testator and not to make it
inoperative. Every intention contained in the Will should, as far as possible, be
given effect to; Papoo v. Kuruvilla, 1994 (2) KLT 278.
88. The last of two inconsistent clauses prevails.-
Where two clauses of gifts in a Will are irreconcilable, so that they cannot
possibly stand together, the last shall prevail.
Illustrations
(i) The testator by the first clause of his Will leaves his estate of Ramnagar "to
A", and by the last clause of his Will leaves it " to B and not to A". B will have it.
(ii) If a man, at the commencement of his Will gives his house to A, and at the
close of it directs that his house shall be sold and the proceeds invested for the
benefit of B, the latter disposition will prevail.
89. Will or bequest void for uncertainty.-
A Will or bequest not expressive of any definite intention is void for uncertainty.
Illustration
If a testator says "I bequeath goods to A", or "I bequeath to A", or "I leave to A
all the goods mentioned in the Schedule" and no Schedule is found, or "I
bequeath 'money', 'wheat', 'oil'" or the like, without saying how much, this is
void.
CASE LAW
Section 89 states that a Will or bequest not expressive of any definite intention
is void for uncertainty. Section 89 comes in Chapter VI of the Succession Act,
which deals with 'Construction of Wills', consisting of sections 74 to 111. Thus, it
is to be seen whether while construing this Will one can find out the intention of
the testator. If the Will contains provisions expressive of any definite intention,
then that Will not become void because of uncertainty. Section 89 applies only
to those cases where a Will is so indefinite that it is not possible to give any
definite intention to it at all. If the testator indicates what he intends to
bequeath and that indication is sufficient to identify the property bequeathed,
there cannot be any difficulty because the testator himself has made the
selection of the properties. So also, if the testator indicates the purposes for
which the properties are bequeathed, then that bequest cannot also fail for
vagueness; Papoo v. Kuruvilla, 1994 (2) KLT 278.
Validity of Will
The mere failure of the testator in not signing in one of the pages of the Will,
would not make the Will incomplete; Baburajan v. Parukutty, AIR 1999 Ker 274.
As held in B. Jain v. General Public, AIR 1995 P&H 201, the essential
characteristics of Will are:-
(a) There must be a legal declaration,
(b) Such declaration must be with respect to the property of the testator,
and
(c) The declaration must be intended to operate after the death of the
testator.
Where the language of the document even if read as a whole does not specify to
be operative after the death of the author of the document, it cannot be said to
be a Will, Ramprasad v. Bherulal, AIR 1992 MP 44.
The mere discrepancy in the evidence of the attestor in case of registered Will
duly endorsed by Registrar would not vitiate its validity; PPK Gopalan Nambiar v.
PPK Bala Krishnan Nambinr, MANU/SC/0354/1995 : AIR 1995 SC 1852.
90. Words describing subject refer to property answering description at

testator's death.-
The description contained in a Will of property, the subject of gift, shall, unless a
contrary intention appears by the Will, be deemed to refer to and comprise the
property answering that description at the death of the testator.
91. Power of appointment executed by general bequest.-
Unless a contrary intention appears by the Will, a bequest of the estate of the
testator shall be construed to include any property which he may have power to
appoint by Will to any object he may think proper, and shall operate as an
execution of such power; and a bequest of property described in a general
manner shall be construed to include any property to which such description
may extend, which he may have power to appoint by Will to any object he may
think proper, and shall operate as an execution of such power.
92. Implied gift to objects of power in default of appointment.-
Where property is bequeathed to or for the benefit of certain objects as a

specified person may appoint or for the benefit of certain objects in such
proportions as a specified person may appoint, and the Will does not provide for
the event of no appointment being made; if the power given by the Will is not
exercised, the property belongs to all the objects of the power in equal shares.
Illustrations
A, by his Will bequeaths a fund to his wife, for her life, and directs that at her
death it shall be divided among his children in such proportions as she shall
appoint. The widow dies without having made any appointment. The fund will be
divided equally among the children.
93. Bequest to "heirs", etc., of particular person without qualifying terms.-
Where a bequest is made to the "heirs" or "right heirs" or "relations" or "nearest

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

"personal representatives" or "executors or administrators" of a particular
person, and the class so designated forms the direct and independent object of
the bequest, the property bequeathed shall be distributed as if it had belonged
to such person and he had died intestate in respect of it.
Illustration
A bequest is made to the "legal representatives" of A. A has died intestate and

insolvent. B is his administrator. B is entitled to receive the legacy, and will
apply it in the first place to the discharge of such part of A's debt as may remain
unpaid: if there be any surplus B will pay it to those persons who at A's death
would have been entitled to receive any property of A's which might remain after
payment of his debts, or to the representatives of such persons.
95. Bequest without words of limitation.-
Where property is bequeathed to any person, he is entitled to the whole interest

of the testator therein, unless it appears from the Will that only a restricted
interest was intended for him.
CASE LAW
When a testator bequeaths a property to another without mentioning as to what

interest he intends to confer on the legatee, the latter will get the absolute
interests of the former. Section 95 of the Indian Succession Act envisages that
where a testator bequeathed property to a person, such person (legatee) would
be entitled to the entire interests of the testator. But when the testator has
manifested in the Will to give the legatee only a limited interest in the property,
he cannot claim any right more than what the testator had intended. However, if
the legatee was given only a restricted interest, section 95 makes the position
clear that he will not get the whole interests of the testator; Narayan Anandam
v. Rakesh, 1994 (1) KLT 475.
96. Bequest in alternative.-
Where a property is bequeathed to a person with a bequest in the alternative to

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

the testator. Upon the death of the testator, the bequest to A's nearest of kin
takes effect.
(vi) Property is bequeathed to A for life, and after this death to B or his heirs. A
and B survive the testator. B dies in A's life-time. Upon A's death the bequest to
the heirs of B takes effect.
(vii) Property is bequeathed to A for life, and after his death to B or his heirs. B
dies in the testator's life-time. A survives the testator. Upon A's death the
bequest to the heirs of B takes effect.
97. Effect of words describing a class added to bequest to person.-
Where property is bequeathed to a person, and words are added which describe
a class of persons but do not denote them as direct objects of a distinct and
independent gift, such person is entitled to the whole interest of the testator
therein, unless a contrary intention appears by the Will.
Illustrations
(i) A bequest is made-
to A and his children,
to A and his children by his present wife,
to A and his heirs,
to A and the heirs of his body,
to A and the heirs male of his body,
to A and the heirs female of his body,
to A and his issue,
to A and his family,
to A and his descendants,
to A and his representatives,
to A and his personal representatives,
to A, his executors and administrators.
In each of these cases, A takes the whole interest which the testator had in the
property.
(ii) A bequest is made to A and his brothers. A and his brothers are jointly
entitled to the legacy.
(iii) A bequest is made to A for life and after his death to his issue. At the death
of A the property belongs in equal shares to all persons who then answer the
description of issue of A.
98. Bequest to class of persons under general description only.-
Where a bequest is made to a class of persons under a general description only,

no one to whom the words of the description are not in their ordinary sense
applicable shall take the legacy.
99. Construction of terms.-
In a Will-
(a) the word "children" applies only to lineal descendants in the first degree of
the person whose "children" are spoken of;
(b) the word "grand-children" applies only to lineal descendants in the second
degree of the person whose "grand-children" are spoken of;
(c) the words "nephews" and "nieces" apply only to children of brothers or
sisters;
(d) the words "cousins", or "first cousins", or "cousins-german", apply only to

children of brothers or of sisters of the father or mother of the person whose
"cousins", or "first cousins", or "cousins-german", are spoken of;
(e) the words "first cousins once removed" apply only to children of cousins-
german, or to cousins-german of a parent of the person whose "first cousins
once removed" are spoken of;
(f) the words "second cousins" apply only to grand-children of brothers or of

sisters of the grandfather or grandmother of the person whose "second cousins"
are spoken of;
(g) the words "issue" and "descendants" apply to all lineal descendants whatever
of the person whose "issue" or "descendants" are spoken of;
(h) words expressive of collateral relationship apply alike to relatives of full and
of half blood; and
(i) all words expressive of relationship apply to a child in the womb who is
afterwards born alive.
CASE LAW
Construction of Will
In the matter of construction between an ordinary deed and a Will there is

striking difference in as much as in construing a Will it should be remembered
that a testator is supposed to be wanting in advise whereas a deed is drawn up
in a certain from familiar to professional advisor; Navneet Lal v.
Gokul, MANU/SC/0328/1975 : (1976) 1 SCC 630; Ram Gopal v. Nand Lal, AIR
1951 SC 139: 1950 SCJ 575: MANU/SC/0044/1950 : 1950 SCR 766: 88 Cal L
Jour 1; Gnanambal Ammal v. T. Raju Ayyar,MANU/SC/0045/1950 : AIR 1951 SC
103: 1951 (1) MLJ 333: 1951 SCJ 171: 1951 SCR 949; Raj Bajrang Bahadur
Singh v. Thakurain Bakhraj Quer, MANU/SC/0081/1952 : AIR 1953 SC 7:1952
SCJ 655: 1953 All LJ 49: 1953 SCR 232: 1953 SCA 369; Pearey Lai v. Rameswer
Das, MANU/SC/0398/1962 : AIR 1963 SC 1703: 1963 SCD 678: 1964 (1) SCJ
85: 1964 Supp (2) SCR 834; Ramachandra Shenoy v. Hilda
Brite, MANU/SC/0248/1963 : AIR 1964 SC 1323; Narayan Anandam v. Rakesh,
AIR 1995 Ker 205.
100. Words expressing relationship denote only legitimate relatives or failing

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

person.-
Where a Will purports to make two bequests to the same person, and a question
arises whether the testator intended to make the second bequest instead of or in
addition to the first; if there is nothing in the Will to show what he intended, the
following rules shall have effect in determining the construction to be put upon
the Will:-
(a) If the same specific thing is bequeathed twice to the same legatee in
the same Will or in the Will and again in the codicil, he is entitled to
receive that specific thing only.
(b) Where one and the same Will or one and the same codicil purports to
make, in two places, a bequest to the same person of the same quantity
or amount of anything, he shall be entitled to one such legacy only.
(c) Where two legacies of unequal amount are given to the same person
in the same Will, or in the same codicil, the legatee is entitled to both.
(d) Where two legacies, whether equal or unequal in amount, are given
to the same legatee, one by a Will and the other by a codicil, or each by
a different codicil, the legatee is entitled to both legacies.
Explanation.-In clauses (a) to (d) of this section, the word "Will"

does not include a codicil.
Illustrations
(i) A, having ten shares, and no more, in the Imperial Bank of India, made his
Will, which contains near its commencement the words "I bequeath my ten
shares in the Imperial Bank of India to B". After other bequests, the Will
concludes with the words "and I bequeath my ten shares in the Imperial Bank of
India to B". B is entitled simply to receive A's ten shares in the Imperial Bank of
India.
(ii) A, having one diamond ring, which was given to him by B, bequeaths to C
the diamond ring which was given by B. A afterwards made a codicil to his Will,
and thereby, after giving other legacies, he bequeathed to C the diamond ring
which was given to him by B. C can claim nothing except the diamond ring which
was given to A by B.
(iii) A, by his Will, bequeaths to B the sum of 5,000 rupees and afterwards in the
same Will repeats the bequest in the same words. B is entitled to one legacy of
5,000 rupees only.
(iv) A, by his Will, bequeaths to B the sum of 5,000 rupees and afterwards in the
same Will bequeaths to B the sum of 6,000 rupees. B is entitled to receive
11,000 rupees.
(v) A, by his Will, bequeaths to B 5,000 rupees and by a codicil to the Will he
bequeaths to him 5,000 rupees. B is entitled to receive 10,000 rupees.
(vi) A, by one codicil to his Will, bequeaths to B 5,000 rupees and by another
codicil bequeaths to him, 6,000 rupees. B is entitled to receive 11,000 rupees.
(vii) A, by his Will, bequeaths "500 rupees to B because she was my nurse", and
in another part of the Will bequeaths 500 rupees to B "because she went to
England with my children". B is entitled to receive 1,000 rupees.
(viii) A, by his Will, bequeaths to B the sum of 5,000 rupees and also, in another
part of the Will, an annuity of 400 rupees. B is entitled to both legacies.
(ix) A, by his Will, bequeaths to B the sum of 5,000 rupees and also bequeaths
to him the sum of 5,000 rupees if he shall attain the age of 18. B is entitled
absolutely to one sum of 5,000 rupees, and takes a contingent interest in
another sum of 5,000 rupees.
CASE LAW
Lost Will
If upon the death of the testator, the original Will is not available, it cannot be
inferred that the Will was revoked; Rangaroo v. Gopal, MANU/MH/0089/1959 :
AIR 1959 Bom 287.
102. Constitution of residuary legatee.-
A residuary legatee may be constituted by any words that show an intention on

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

the testator at the time of his death, of which he has not made any other
testamentary disposition which is capable of taking effect.
Illustration
A by his Will bequeaths certain legacies, of which one is void under section 118,
and another lapses by the death of the legatee. He bequeaths the residue of his
property to B. After the date of his Will A purchases a zamindari, which belongs
to him at the time of his death. B is entitled to the two legacies and the
zamindari as part of the residue.
104. Time of vesting legacy in general terms.-
If a legacy is given in general terms, without specifying the time when it is to be

paid, the legatee has a vested interest in it from the day of the death of the
testator, and, if he dies without having received it, it shall pass to his
representatives.
105. In what case legacy lapses.-
(1) If the legatee does not survive the testator, the legacy cannot take effect,
but shall lapse and form part of the residue of the testator's property, unless it
appears by the Will that the testator intended that it should go to some other
person.
(2) In order to entitle the representatives of the legatee to receive the legacy, it
must be proved that he survived the testator.
Illustrations
(i) The testator bequeaths to B "500 rupees which B owes me". B dies before the
testator; the legacy lapses.
(ii) A bequest is made to A and his children. A dies before the testator, or
happens to be dead when the Will is made. The legacy to A and his children
lapses.
(iii) A legacy is given to A, and, in case of his dying before the testator, to B. A
dies before the testator. The legacy goes to B.
(iv) A sum of money is bequeathed to A for life, and after his death to B. A dies
in the life-time of the testator; B survives the testator. The bequest to B takes
effect.
(v) A sum of money is bequeathed to A on his completing his eighteenth year,

and in case he should die before he completes his eighteenth year, to B. A
completes his eighteenth year, and dies in the life-time of the testator. The
legacy to A lapses, and the bequest to B does not take effect.
(vi) The testator and the legatee perished in the same ship-wreck. There is no
evidence to show which died first. The legacy lapses.
106. Legacy does not lapse if one of two joint legatees die before testator.-
If a legacy is given to two persons jointly, and one of them dies before the
testator, the other legatee takes the whole.
Illustration
The legacy is simply to A and B. A dies before the testator. B takes the legacy.
107. Effect of words showing testator's intention to give distinct shares.-
If a legacy is given to legatees in words which show that the testator intended to
give them distinct shares of it, then, if any legatee dies before the testator, so
much of the legacy as was intended for him shall fall into the residue of the
testator's property.
Illustration
A sum of money is bequeathed to A, B and C, to be equally divided among them.

A dies before the testator. B and C will only take so much as they would have
had if A had survived the testator.
108. When lapsed share goes as undisposed of.-
Where a share which lapses is a part of the general residue bequeathed by the
Will, that share shall go as undisposed of.
Illustration
The testator bequeaths the residue of his estate to A, B and C, to be equally

divided between them. A dies before the testator. His one-third of the residue
goes as undisposed of.
109. When bequest to testator's child or lineal descendant does not lapse on

his death in testator's life-time.-
Where a bequest has been made to any child or other lineal descendant of the
testator, and the legatee dies in the life-time of the testator, but any lineal
descendant of his survives the testator, the bequest shall not lapse, but shall
take effect as if the death of the legatee had happened immediately after the
death of the testator, unless a contrary intention appears by the Will.
Illustration
A makes his Will, by which he bequeaths a sum of money to his son, B, for his
own absolute use and benefit. B dies before A, leaving a son, C, who survives A,
and having made his Will whereby he bequeaths all his property to his widow, D.
The money goes to D.
110. Bequest to A for benefit of B does not lapse by A's death.-
Where a bequest is made to one person for the benefit of another, the legacy
does not lapse by the death, in the testator's life-time, of the person to whom
the bequest is made.
111. Survivorship in case of bequest to described class.-
Where a bequest is made simply to a described class of persons, the thing

bequeathed shall go only to such as are alive at the testator's death.
Exception.--If property is bequeathed to a class of persons described as

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

divided among them at the death of C. At the death of the testator, B has two
children living, D and E. After the death of the testator, but in the life-time of C,
two other children, F and G, are born to B. After the death of C, another child is
born to B. The legacy belongs to D, E, F and G to the exclusion of the after-born
child of B.
(vii) A bequeaths a fund to the children of B, to be divided among them when

the eldest shall attain majority. At the testator's death, B had one child living,
named C. He afterwards had two other children, named D and E, E died, but C
and D were living when C attained majority. The fund belongs to C, D and the
representatives of E, to the exclusion of any child who may be born to B after
C's attaining majority.
Of Void Bequests
112. Bequest to person by particular description, who is not in existence at

testator's death.-
Where a bequest is made to a person by a particular description, and there is no

person in existence at the testator's death who answers the description, the
bequest is void.
Exception.-If property is bequeathed to a person described as standing in
a particular degree of kindred to a specified individual, but his possession
of it is deferred until a time later than the death of the testator, by
reason of a prior bequest or otherwise; and if a person answering the
description is alive at the death of the testator, or comes into existence
between that event, and such later time, the property shall, at such later
time, go to that person, or, if he is dead, to his representatives.
Illustrations
(i) A bequeaths 1,000 rupees to the eldest son of B. At the death of the testator,
B has no son. The bequest is void.
(ii) A bequeaths 1,000 rupees to B for life, and after his death to the eldest son
of C. At the death of the testator, C had no son. Afterwards, during the life of B,
a son is born to C. Upon B's death the legacy goes to C's son.
(iii) A bequeaths 1,000 rupees to B for life, and after his death to the eldest son
of C. At the death of the testator, C had no son. Afterwards, during the life of B,
a son, named D, is born to C. D dies, then B dies. The legacy goes to the
representative of D.
(iv) A bequeaths his estate of Green Acre to B for life, and at his decease, to the
eldest son of C. Up to the death of B, C has had no son. The bequest to C's
eldest son is void.
(v) A bequeaths 1,000 rupees to the eldest son of C, to be paid to him after the
death of B. At the death of the testator C has no son, but a son is afterwards
born to him during the life of B and is alive at B's death. C's son is entitled to the
1,000 rupees.
113. Bequest to person not in existence at testator's death subject to prior

bequest.-
Where a bequest is made to a person not in existence at the time of the

testator's death, subject to a prior bequest contained in the Will, the later
bequest shall be void, unless it comprises the whole of the remaining interest of
the testator in the thing bequeathed.
Illustrations
(i) Property is bequeathed to A for his life, and after his death to his eldest son
for life, and after the death of the latter to his eldest son. At the time of the
testator's death, A has no son. Here the bequest to A's eldest son is a bequest to
a person not in existence at the testator's death. It is not a bequest of the whole
interest that remains to the testator. The bequest to A's eldest son for his life is
void.
(ii) A fund is bequeathed to A for his life, and after his death to his daughters. A
survives the testator. A has daughters some of whom were not in existence at
the testator's death. The bequest to A's daughters comprises the whole interest
that remains to the testator in the thing bequeathed. The bequest to A's
daughters is valid.
(iii) A fund is bequeathed to A for his life, and after his death to his daughters,
with a direction that, if any of them marries under the age of eighteen, her
portion shall be settled so that it may belong to herself for life and may be
divisible among her children after her death. A has no daughters living at the
time of the testator's death, but has daughters born afterwards who survive
him. Here the direction for a settlement has the effect in the case of each
daughter who marries under eighteen of substituting for the absolute bequest to
her merely for her life; that is to say, a bequest to a person not in existence at
the time of the testator's death of something which is less than the whole
interest that remains to the testator in the thing bequeathed. The direction to
settle the fund is void.
(iv) A bequeaths a sum of money to B for life, and directs that upon the death of
B the fund shall be settled upon his daughters, so that the portion of each
daughter may belong to herself for life, and may be divided among her children
after death. B has no daughter living at the time of the testator's death. In this
case the only bequest to the daughters of B is contained in the direction to settle
the fund, and this direction amounts to a bequest to persons not yet born, of a
life-interest in the fund, that is to say, of something which is less than the whole
interest that remains to the testator in the thing bequeathed. The direction to
settle the fund upon the daughters of B is void.
114. Rule against perpetuity.-
No bequest is valid whereby the vesting of the thing bequeathed may be delayed
beyond the 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.
Illustrations
(i) A fund is bequeathed to A for his life and after his death to B for his life; and
after B's death to such of the sons of B as shall first attain the age of 25. A and
B survive the testator. Here the son of B who shall first attain the age of 25 may
be a son born after the death of the testator; such son may not attain 25 until
more than 18 years have elapsed from the death of the longer liver of A and B;
and the vesting of the fund may thus be delayed beyond the life-time 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
life-time 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 life-time. The bequest is valid.
(iii) A fund is bequeathed to A for his life, and after his death to B for his life,
with a direction that after B's death it shall be divided amongst such of B's
children as shall attain the age of 18, but that, if no child of B shall attain that
age, the fund shall go to C. Here the time for the division of the fund must arrive
at the latest at the expiration of 18 years from the death of B, a person living at
the testator's decease. All the bequests are valid.
(iv) A fund is bequeathed to trustees for the benefit of the testator's daughters,
with a direction that, if any of them marry under age, her share of the fund shall
be settled so as to devolve after her death upon such of her children as shall
attain the age of 18. Any daughter of the testator to whom the direction applies
must be in existence at his decease, and any portion of the fund which may
eventually be settled as directed must vest not later than 18 years from the
death of the daughters whose share it was. All these provisions are valid.
115. Bequest to a class some of whom may come under rules in sections 113
and 114.-
If a bequest is made to a class of persons with regard to some of whom it is

inoperative by reason of the provisions of section 113 or section 114, such
bequest shall be 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, therefore, 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.
(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 and 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.
116. Bequest to take effect on failure of prior bequest.-
Where by reason of any of the rules contained in sections 113 and 114, any
bequest in favour of a person or of a class of persons is void in regard to such
person or the whole of such class, any bequest contained in the same Will and
intended to take effect after or upon failure of such prior bequest is also void.
Illustrations
(i) A fund is bequeathed to A for his life, and after his death to such of his sons
as shall first attain the age of 25, for his life, and after the decease of such son
to B. A and B survive the testator. The bequest to B is intended to take effect
after the bequest to such of the sons of A as shall first attain the age of 25,
which bequest is void under section 114. The bequest to B is void.
(ii) A fund is bequeathed to A for his life, and after his death to such of his sons
as shall first attain the age of 25, and if no son of A shall attain that age, to B. A
and B survive the testator. The bequest to B is intended to take effect upon
failure of the bequest to such of A's sons as shall first attain the age of 25, which
bequest is void under section 114. The bequest to B is void.
117. Effect of direction for accumulation.-
(1) Where the terms of a Will direct that the income arising from any property
shall be accumulated either wholly or in part during any period longer than a
period of eighteen years from the death of the testator, such direction shall,
save as hereinafter provided, be void to the extent to which the period during
which the accumulation is directed exceeds the aforesaid period, and at the end
of such period of eighteen years the property and the income thereof shall be
disposed of as if the period during which the accumulation has been directed to
be made had elapsed.
(2) This section shall not affect any direction for accumulation for the purpose
of-
(i) the payment of the debts of the testator or any other person taking
any interest under the Will, or
(ii) the provision of portions for children or remoter issue of the testator
or of any other person taking any interest under the Will, or
(iii) the preservation or maintenance of any property bequeathed,
and such direction may be made accordingly.
118. Bequest to religious or charitable uses.-
No man having a nephew or niece or any nearer relative shall have power to
bequeath any property to religious or charitable uses, except by a Will executed
not less than twelve months before his death, and deposited within six months
from its execution in some place provided by law for the safe custody of the
Wills of living persons:
Provided that nothing in this section shall apply to a Parsi.
Illustrations
A having a nephew makes a bequest by a Will not executed and deposited as

required-
for the relief of poor people;
for the maintenance of sick soldiers;
for the erection or support of a hospital;
for the education and preferment of orphans;
for the support of scholars;
for the erection or support of a school;
for the building and repairs of a bridge;
for the making of roads;
for the erection or support of a church;
for the repairs of a church;
for the benefit of ministers of religion;
for the formation or support of a public garden.

All these bequests are void.
Of the Vesting of Legacies
119. Date of vesting of legacy when payment or possession postponed.-
Where by the terms of a bequest the legatee is not entitled to immediate

possession of the thing bequeathed, a right to receive it at the proper time shall,
unless a contrary intention appears by the Will, become vested in the legatee on
the testator's death, and shall pass to the legatee's representatives if he dies
before that time and without having received the legacy, and in such cases the
legacy is from the testator's death said to be vested in interest.
Explanation.-An intention that a legacy to any person shall not become

vested in interest in him is not to be inferred merely from a provision
whereby the payment or possession of the thing bequeathed is
postponed, or whereby a prior interest therein is bequeathed to some
other person, or whereby the income arising from the fund bequeathed is
directed to be accumulated until the time of payment arrives, or from a
provision that, if a particular event shall happen, the legacy shall go over
to another person.
Illustrations
(i) A bequeaths to B 100 rupees, to be paid to him at the death of C. On A's

death the legacy becomes vested in interest in B, and if he dies before C, his
representatives are entitled to the legacy.
(ii) A bequeaths to B 100 rupees, to be paid to him upon his attaining the age of
18. On A's death the legacy becomes vested in interest in B.
(iii) A fund is bequeathed to A for life, and after his death to B. On the testator's
death the legacy to B becomes vested in interest in B.
(iv) A fund is bequeathed to A until B attains the age of 18 and then to B. The
legacy to B is vested in interest from the testator's death.
(v) A bequeaths the whole of his property to B upon trust to pay certain debts
out of the income and then to make over the fund to C. At A's death the gift to C
becomes vested in interest in him.
(vi) A fund is bequeathed to A, B and C in equal shares to be paid to them on

their attaining the age of 18, respectively, with a proviso that, if all of them die
under the age of 18, the legacy shall devolve upon D. On the death of the
testator, the shares vested in interest in A, B and C, subject to be divested in
case A, B and C shall all die under 18 and, upon the death of any of them
(except the last survivor) under the age of 18, his vested interest passes, so
subject, to his representatives.
120. Date of vesting when legacy contingent upon specified uncertain event.-
(1) A legacy bequeathed in case a specified uncertain event shall happen does
not vest until that event happens.
(2) A legacy bequeathed in case a specified uncertain event shall not happen
does not vest until the happening of that event becomes impossible.
(3) fn either case, until the condition has been fulfilled, the interest of the
legatee is called contingent.
Exception.-Where a fund is bequeathed to any person upon his attaining

a particular age, and the Will also gives to him absolutely the income to
arise from the fund before he reaches that age, or directs the income, or
so much of it as may be necessary, to be applied for his benefit, the
bequest of the fund is not contingent.
Illustrations
(i) A legacy is bequeathed to D in case A, B and C shall all die under the age of
18. D has a contingent interest in the legacy until A, B and C all die under 18, or
one of them attains that age.
(ii) A sum of money is bequeathed to A "in case he shall attain the age of 18", or
"when he shall attain the age of 18". A's interest in the legacy is contingent until
the condition is fulfilled by his attaining that age.
(iii) An estate is bequeathed to A for life, and after his death to B if B shall then
be living; but if B shall not be then living to C. A, B and C survive the testator. B
and C each take a contingent interest in the estate until the event which is to
vest it in one or in the other has happened.
(iv) An estate is bequeathed as in the case last supposed. B dies in the life-time
of A and C. Upon the death of B, C acquires a vested right to obtain possession
of the estate upon A's death.
(v) A legacy is bequeathed to A when she shall attain the age of 18, or shall
marry under that age with the consent of B, with a proviso that if she neither
attains 18 nor marries under that age with B's consent, the legacy shall go to C.
A and C each take a contingent interest in the legacy. A attains the age of 18. A
becomes absolutely entitled to the legacy although she may have married under
18 without the consent of B.
(vi) An estate is bequeathed to A until he shall marry and after that event to B.
B's interest in the bequest is contingent until the condition is fulfilled by A's
marrying.
(vii) An estate is bequeathed to A until he shall take advantage of any law for
the relief of insolvent debtors, and after that event to B. B's interest in the
bequest is contingent until A takes advantage of such a law.
(viii) An estate is bequeathed to A if he shall pay 500 rupees to B. A's interest in

the bequest is contingent until he has paid 500 rupees to B.
(ix) A leaves his farm of Sultanpur Khurd to B, if B shall convey his own farm of
Sultanpur Buzurg to C. B's interest in the bequest is contingent until he has
conveyed the latter farm to C
(x) A fund is bequeathed to A if B shall not marry C within five years after the
testator's death. A's interest in the legacy is contingent until the condition is
fulfilled by the expiration of the five years without B's having married C, or by
the occurrence within that period of an event which makes the fulfilment of the
condition impossible.
(xi) A fund is bequeathed to A if B shall not make any provision for him by Will.
The legacy is contingent until B's death.
(xii) A bequeaths to B 500 rupees a year upon his attaining the age of 18, and
directs that the interest, or a competent part thereof, shall be applied for his
benefit until he reaches that age. The legacy is vested.
(xiii) A bequeaths to B 500 rupees when he shall attain the age of 18 and directs
that a certain sum, out of another fund, shall be applied for his maintenance
until he arrives at that age. The legacy is contingent.
121. Vesting of interest in bequest to such members of a class as shall have

attained particular age.-
Where a bequest is made only to such members of a class as shall have attained
a particular age, a person who has not attained that age cannot have a vested
interest in the legacy.
Illustration
A fund is bequeathed to such of the children of A as shall attain the age of 18,
with a direction that, while any child of A shall be under the age of 18, the
income of the share, to which it may be presumed he will be eventually entitled,
shall be applied for his maintenance and education. No child of A who is under
the age of 18 has a vested interest in the bequest.
Of Onerous Bequests
122. Onerous bequests.-
Where a bequest imposes an obligation on the legatee, he can take nothing by it

unless he accepts it fully.
Illustration
A, having shares in (X), a prosperous joint stock company and also shares in
(Y), a joint stock company in difficulties, in respect of which shares heavy calls
are expected to be made, bequeaths to B all his shares in joint stock companies;
B refuses to accept the shares in (Y). He forfeits the shares in (X).
123. One of two separate and independent bequests to same person may be

accepted, and other refused.-
Where a Will contains two separate and independent bequests to the same
person, the legatee is at liberty to accept one of them and refuse the other,
although the former may be beneficial and the latter onerous.
Illustration
A, having a lease for a term of years of a house at a rent which he and his
representatives are bound to pay during the term, and which is higher than the
house can be let for, bequeaths to B the lease and a sum of money. B refuses to
accept the lease. He will not by this refusal forfeit the money.
Of Contingent Bequests
124. Bequest contingent upon specified uncertain event, no time being

mentioned for its occurrence.-
Where a legacy is given if a specified uncertain event shall happen and no time
is mentioned in the will for the occurrence of that event, the legacy cannot take
effect, unless such event happens before the period when the fund bequeathed
is payable or distributable.
Illustrations
(i) A legacy is bequeathed to A, and, in case of his death, to B. If A survives the

testator, the legacy to B does not take effect.
(ii) A legacy is bequeathed to A, and in case of his death without children, to B.

If A survives the testator or dies in his life-time leaving a child, the legacy to B
does not take effect.
(iii) A legacy is bequeathed to A when and if he attains the age of 18, and, in
case of his death, to B. A attains the age of 18. The legacy to B does not take
effect.
(iv) A legacy is bequeathed to A for life, and, after his death to B, and, "in case
of B's death without children", to C. The words "in case of B's death without
children" are to be understood as meaning in case B dies without children during
the life-time of A.
(v) A legacy is bequeathed to A for life, and, after his death to B, and, "in case
of B's death" to C. The words "in case of B's death" are to be considered as
meaning "in case B dies in the life-time of A".
125. Bequest to such of certain persons as shall be surviving at some period

not specified.-
Where a bequest is made to such of certain persons as shall be surviving at

some period, but the exact period is not specified, the legacy shall go to such of
them as are alive at the time of payment or distribution, unless a contrary
intention appears by the will.
Illustrations
(i) Property bequeathed to A and B to be equally divided between them, or to

the survivor of them. If both A and B survive the testator, the legacy is equally
divided between them. If A dies before the testator, and B survives the testator,
it goes to B.
(ii) Property is bequeathed to A for life, and, after his death, to B and C, to be
equally divided between them, or to the survivor of them. B dies during the life
of A; C survives A. At A's death the legacy goes to C.
(iii) Property is bequeathed to A for life, and after his death to B and C, or the
survivor, with a direction that, if B should not survive the testator, his children
are to stand in his place. C dies during the life of the testator; B survives the
testator, but dies in the life-time of A. The legacy goes to the representative of
B.
(iv) Property is bequeathed to A for life, and, after his death, to B and C, with a
direction that, in case either of them dies in the life-time of A, the whole shall go
to the survivor. B dies in the life-time of A. Afterwards C dies in the life-time of
A. The legacy goes to the representative of C
Of Conditional Bequests
126. Bequest upon impossible condition.-
A bequest upon an impossible condition is void.
Illustrations
(i) An estate is bequeathed to A on condition that he shall walk 100 miles in an

hour. The bequest is void.
(ii) A bequeaths 500 rupees to B on condition that he shall marry A's daughter.
A's daughter was dead at the date of the Will. The bequest is void.
127. Bequest upon illegal or immoral condition.-
A bequest upon a condition, the fulfilment of which would be contrary to law or

to morality is void.
Illustrations
(i) A bequeaths 500 rupees to B on condition that he shall murder C. The

bequest is void.
(ii) A bequeaths 5,000 rupees to his niece if she will desert her husband. The
bequest is void.
128. Fulfilment of condition precedent to vesting of legacy.-
Where a Will imposes a condition to be fulfilled before the legatee can take a
vested interest in the thing bequeathed, the condition shall be considered to
have been fulfilled if it has been substantially complied with.
Illustrations
(i) A legacy is bequeathed to A on condition that he shall marry with the consent
to B, C, D and E. A marries with the written consent of B. C is present at the
marriage. D sends a present to A previous to the marriage. E has been
personally informed by A of his intentions, and has made no objection. A has
fulfilled the condition.
(ii) A legacy is bequeathed to A on condition that he shall marry with the

consent of B, C and D. D dies. A marries with the consent of B and C A has
fulfilled the condition.
(iii) A legacy is bequeathed to A on condition that he shall marry with the

consent of B, C and D. A marries in the life-time of B, C and D, with the consent
of B and C only. A has not fulfilled the condition.
(iv) A legacy is bequeathed to A on condition that he shall marry with the

consent of B, C and D. A obtains the unconditional assent of B, C and D to his
marriage with E. Afterwards B, C and D capriciously retract their consent. A
marries E. A has fulfilled the condition.
(v) A legacy is bequeathed to A on condition that he shall marry with the

consent of B, C and D. A marries without the consent of B, C and D, but obtains
their consent after the marriage. A has not fulfilled the condition.
(vi) A makes his Will whereby he bequeaths a sum of money to B if B shall

marry with the consent of A's executors. B marries during the life-time of A, and
A afterwards expresses his approbation of the marriage. A dies. The bequest to
B takes effect.
(vii) A legacy is bequeathed to A if he executes a certain document within a time

specified in the Will. The document is executed by A within a reasonable time,
but not within the time specified in the Will. A has not performed the condition,
and is not entitled to receive the legacy.
129. Bequest to A and on failure of prior bequest to B.-
Where there is a bequest to one person and a bequest of the same thing to
another, if the prior bequest shall fail, the second bequest shall take effect upon
the failure of the prior bequest although the failure may not have occurred in the
manner contemplated by the testator.
Illustrations
(i) A bequeaths a sum of money to his own children surviving him, and, if they
all die under 18, to B. A dies without having ever had a child. The bequest to B
takes effect.
(ii) A bequeaths a sum of money to B, on condition that he shall execute a

certain document within three months after A's death and, if he should neglect
to do so, to C. B dies in the testator's life-time. The bequest to C takes effect.
130. When second bequest not to take effect on failure of first.-
Where the Will shows an intention that the second bequest shall take effect only
in the event of the first bequest failing in a particular manner, the second
bequest shall not take effect, unless the prior bequest fails in that particular
manner.
Illustration
A makes a bequest to his wife, but in case she should die in his lifetime,
bequeaths to B that which he had bequeathed to her. A and his wife perish
together, under circumstances which make it impossible to prove that she died
before him, the bequest to B does not take effect.
131. Bequest over conditional upon happening or not happening of specified

uncertain event.-
(1) A bequest may be made to any person with the condition super-added that,
in case a specified uncertain event shall happen, the thing bequeathed shall go
to another person, or that in case a specified uncertain event shall not happen,
the thing bequeathed shall go over to another person.
(2) In each case the ulterior bequest is subject to the rules contained in sections
120, 121, 122, 123, 124, 125, 126, 127, 129 and 130.
Illustrations
(i) A sum of money is bequeathed to A, to be paid to him at the age of 18, and if
he shall die before he attains that age, to B. A takes a vested interest in the
legacy, subject to be divested and to go to B in case A dies under 18.
(ii) An estate is bequeathed to A with a proviso that if A shall dispute the

competency of the testator to make a Will, the estate shall go to B. A disputes
the competency of the testator to make a Will. The estate goes to B.
(iii) A sum of money is bequeathed to A for life, and, after his death, to B, but if
B shall then be dead leaving a son, such son is to stand in the place of B. B
takes a vested interest in the legacy, subject to be divested if he dies leaving a
son in A's life-time.
(iv) A sum of money is bequeathed to A and B, and if either should die during
the life of C, then to the survivor living at the death of C. A and B die before C.
The gift over cannot take effect, but the representative of A takes one-half of
the money, and the representative of B takes the other half.
(v) A bequeaths to B the interest of a fund for life, and directs the fund to be
divided at her death equally among her three children, or such of them as shall
be living at her death. All the children of B die in B's life-time. The bequest over
cannot take effect, but the interests of the children pass to their representatives.
132. Condition must be strictly fulfilled.-
An ulterior bequest of the kind contemplated by section 131 cannot take effect,
unless the condition is strictly fulfilled.
Illustrations
(i) A legacy is bequeathed to A, with a proviso that, if he marries without the

consent of B, C and D, the legacy shall go to E. D dies. Even if A marries without
the consent of B and C, the gift of E does not take effect.
(ii) A legacy is bequeathed to A, with a proviso that, if he marries without the

consent of B, the legacy shall go to C. A marries with the consent of B. He
afterwards becomes a widower and marries again without the consent of B. The
bequest to C does not take effect.
(iii) A legacy is bequeathed to A, to be paid at 18, or marriage, with a proviso

that, if A dies under 18 or marries without the consent of B, the legacy shall go
to C. A marries under 18, without the consent of B. The bequest to C takes
effect.
133. Original bequest not affected by invalidity of second.-
If the ulterior bequest be not valid the original bequest is not affected by it.
Illustrations
(i) An estate is bequeathed to A for his life with condition superadded that, if he
shall not on a given day walk 100 miles in an hour, the estate shall go to B. The
condition being void, A retains his estate as if no condition had been inserted in
the Will.
(ii) An estate is bequeathed to A for her life and, if she docs not desert her
husband, to B. A is entitled to the estate during her life as if no condition had
been inserted in the Will.
(iii) An estate is bequeathed to A for life, and, if he marries, to the eldest son of
B for life. B at the date of the testator's death, has not had a son. The bequest
over is void under section 105, and A is entitled to the estate during his life.
134. Bequest conditioned that it shall cease to have effect in case a specified

uncertain event shall happen, or not happen.-
A bequest may be made with the condition super-added that it shall cease to
have effect in case a specified uncertain event shall happen, or in case a
specified uncertain event shall not happen.
Illustrations
(i) An estate is bequeathed to A for his life, with a proviso that, in case he shall
cut down a certain wood, the bequest shall cease to have any effect. A cuts
down the wood. He loses his life-interest in the estate.
(ii) An estate is bequeathed to A, provided that, if he marries under the age of

25 without the consent of the executors named in the will, the estate shall cease
to belong to him. A marries under 25 without the consent of the executors. The
estate ceases to belong to him.
(iii) An estate is bequeathed to A, provided that, if he shall not go to England

within three years after the testator's death, his interest in the estate shall
cease. A does not go to England within the time prescribed. His interest in the
estate ceases.
(iv) An estate is bequeathed to A, with a proviso that, if she becomes a nun, she
shall cease to have any interest in the estate. A becomes a nun. She loses her
interest under the Will.
(v) A fund is bequeathed to A for life, and, after his death, to B, if B shall be
then living, with a proviso that, if B shall become a nun, the bequest to her shall
cease to have any effect. B becomes a nun in the life-time of A. She thereby
loses her contingent interest in the fund.
135. Such condition must not be invalid under section 120.-
In order that a condition that a bequest shall cease to have effect may be valid,
it is necessary that the event to which it relates be one which could legally
constitute the condition of a bequest as contemplated by section 120.
136. Result of legatee rendering impossible or indefinitely postponing act for

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

Further time in case of fraud.-
Where the Will requires an act to be performed by the legatee within a specified
time, either as a condition to be fulfilled before the legacy is enjoyed, or as a
condition upon the non-fulfilment of which the subject-matter of the bequest is
to go over to another person or the bequest is to cease to have effect, the act
must be performed within the time specified, unless the performance of it be
prevented by fraud, in which case such further time shall be allowed as shall be
requisite to make up for the delay caused by such fraud.
Of Bequests with Directions as to Application or Enjoyment
138. Direction that fund be employed in particular manner following absolute

bequest of same to or for benefit of any person.-
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 had
contained no such direction.
Illustration
A sum of money is bequeathed towards purchasing a country residence for A, or

to purchase an annuity for A or to place A in any business. A choses to receive
the legacy in money. He is entitled to do so.
139. Direction that mode of enjoyment of absolute bequest is to be restricted,

to secure specified benefit for legatee.-
Where a testator absolutely bequeaths a fund, so as to sever it from his own

estate, but directs that the mode of enjoyment of it by the legatee shall be
restricted so as to secure a specified benefit for the legatee; if that benefit
cannot be obtained for the legatee, the fund belongs to him as if the Will had
contained no such direction.
Illustrations
(i) A bequeaths the residue of his property to be divided equally among his
daughters, and directs that the shares of the daughters shall be settled upon
themselves respectively for life and be paid to their children after their death. All
the daughters die unmarried. The representatives of each daughter are entitled
to her share of the residue.
(ii) A directs his trustees to raise a sum of money for his daughter, and he then
directs that they shall invest the fund and pay the income arising from it to her
during her life, and divide the principal among her children after her death. The
daughter dies without having ever had a child. Her representatives are entitled
to the fund.
140. Bequest of fund for certain purposes, some of which cannot be fulfilled.-
Where a testator does not absolutely bequeath a fund, so as to sever it from his
own estate, but gives it for certain purposes, and part of those purposes cannot
be fulfilled, the fund, or so much of it as has not been exhausted upon the
objects contemplated by the Will, remains a part of the estate of the testator.
Illustrations
(i) A directs that his trustees shall invest a sum of money in a particular way,
and shall pay the interest to his son for life, and at his death shall divide the
principal among his children. The son dies without having ever had a child. The
fund, after the son's death, belongs to the estate of the testator.
(ii) A bequeaths the residue of his estate, to be divided equally among his
daughters, with a direction that they are to have the interest only during their
lives, and that at their decease the fund shall go to their children. The daughters
have no children. The fund belongs to the estate of the testator.
Of Bequests to an Executor
141. Legatee named as executor cannot take unless he shows intention to act

as executor.-
If a legacy is bequeathed to a person who is named an executor of the Will, he

shall not take the legacy, unless he proves the Will or otherwise manifests an
intention to act as executor.
Illustration
A legacy is given to A, who is named an executor. A orders the funeral according

to the directions contained in the Will, and dies a few days after the testator,
without having proved the Will. A has manifested an intention to act as executor.
Of Specific Legacies
142. Specific legacy defined.-
Where a testator bequeaths to any person a specified part of his property, which
is distinguished from all other parts of his property, the legacy is said to be
specific.
Illustrations
(i) A bequeaths to B-
"the diamond ring presented to me by C";
"my gold chain";
"a certain bale of wool";
"a certain piece of cloth";
"all my household goods which shall be in or about my dwelling house in

M. Street, in Calcutta, at time of my death";
"the sum of 1,000 rupees in a certain chest";
"the debt which B owes me";
"all my bills, bonds and securities belonging to me lying in my lodging in

Calcutta";
"all my furniture in my house in Calcutta";
"all my goods on board a certain ship now lying in the river Hughli";
"2,000 rupees which I have in the hands of C";
"the money due to me on the bond of D";
"my mortgage on the Rampur factory";
"one-half of the money owing to me on my mortgage of Rampur factory";
"1,000 rupees, being part of a debt due to me from C";
"my capital stock of 1,000 in East India Stock";
"my promissory notes of the Central Government for 10,000 rupees in

their 4 per cent. loan";
"all such sums of money as my executors may, after my death, receive in

respect of the debt due to me from the insolvent firm of D and
Company";
"all the wine which I may have in my cellar at the time of my death";
"such of my horses as B may select";
"ail my shares in the Imperial Bank of India";
"all my shares in the imperial Bank of India which I may possess at the
time of my death";
"all the money which I have in the 51/2 per cent. loan of the Central
Government";
"all the Government securities I shall be entitled to at the time of my

decease".
Each of these legacies is specific.
(ii) A, having Government promissory notes for 10,000 rupees, bequeaths to his
executors "Government promissory notes for 10,000 rupees in trust to sell" for
the benefit of B. The legacy is specific.
(iii) A, having property at Benares, and also in other places, bequeaths to B all
his property at Benares. The legacy is specific.
(iv) A bequeaths to B-
his house in Calcutta;
his zamindari of Rampur;
his taluq of Ramnagar;
his lease of the indigo-factory of Salkya;
an annuity of 500 rupees out of the rents of his zamindari of W.
A directs his zamindari of X to be sold, and the proceeds to be invested

for the benefit of B.
Each of these bequests is specific.
(v) A by his Will charges his zamindari of Y with an annuity of 1,000 rupees to C
during his life, and subject to this charge he bequeaths the zamindari to D. Each
of these bequests is specific.
(vi) A bequeaths a sum of money-
to buy a house in Calcutta for B;

to buy an estate in zila Faridpur for B;
to buy a diamond ring for B;
to buy a horse for B;
to be invested in shares in the Imperial Bank of India for B;
to be invested in Government securities for B.
A bequeaths to B-
"a diamond ring";
"a horse";
"10,000 rupees worth of Government securities";
"an annuity of 500 rupees";
"2,000 rupees to be paid in cash";
"so much money as will produce 5,000 rupees four per cent. Government
securities".
These bequests are not specific.
(vii) A, having property in England and property in India, bequeaths a legacy to

B, and directs that it shall be paid out of the property which he may leave in
India. He also bequeaths a legacy to C, and directs that it shall be paid out of
property which he may leave in England. No one of these legacies is specific.
143. Bequest of certain sum where stocks, etc, in which invested are

described.-
Where a certain sum is bequeathed, the legacy is not specific merely because
the stock, funds or securities in which it is invested are described in the Will.
Illustration
A bequeaths to B-
"10,000 rupees of my funded property";
"10,000 rupees of my property now invested in shares of the East Indian

Railway Company";
"10,000 rupees, at present secured by mortgage of Rampur factory".

None of these legacies is specific.
144. Bequest of stock where testator had, at date of Will, equal or greater

amount of stock of same kind.-
Where a bequest is made in general terms of a certain amount of any kind of

stock, the legacy is not specific merely because the testator was, at the date of
his will, possessed of stock of the specified kind, to an equal or greater amount
than the amount bequeathed.
Illustration
A bequeaths to B 5,000 rupees five per cent. Government securities. A had at

the date of the Will five per cent. Government securities for 5,000 rupees. The
legacy is not specific.
145. Bequest of money where not payable until part of testator's property

disposed of in certain way.-
A money legacy is not specific merely because the Will directs its payment to be
postponed until some part of the property of the testator has been reduced to a
certain form, or remitted to a certain place.
Illustration
A bequeaths to B 10,000 rupees and directs that this legacy shall be paid as
soon as A's property in India shall be realised in England. The legacy is not
specific.
146. When enumerated articles not deemed specifically bequeathed.-
Where a Will contains a bequest of the residue of the testator's property along
with an enumeration of some items of property not previously bequeathed, the
articles enumerated shall not be deemed to be specifically bequeathed.
147. Retention, in form, of specific bequest to several persons in succession.-
Where property is specifically bequeathed to two or more persons in succession,

it shall be retained in the form in which the testator left it, although it may be of
such a nature that its value is continually decreasing.
Illustrations
(i) A, having lease of a house for a term of years, fifteen of which were
unexpired at the time of his death, has bequeathed the lease to B for his life,
and after B's death to C. B is to enjoy the property as A left it, although, if B
lives for fifteen years, C can take nothing under the bequest.
(ii) A, having an annuity during the life of B, bequeaths it to C, for his life, and,
after C's death, to D. C is to enjoy the annuity as A left it, although, if B dies
before D, D can take nothing under the bequest.
148. Sale and investment of proceeds of property bequeathed to two or more

persons in succession.-
Where property comprised in a bequest to two or more persons in succession is

not specifically bequeathed, it shall, in the absence of any direction to the
contrary, be sold, and the proceeds of the sale shall be invested in such
securities as the High Court may by any general rule authorise or direct, and the
fund thus constituted shall be enjoyed by the successive legatees according to
the terms of the Will.
Illustration
A, having a lease for a term of years, bequeaths all his property to B for life,
and, after B's death to C. The lease must be sold, the proceeds invested as
stated in this section and the annual income arising from the fund is to be paid
to B for life. At B's death the capital of the fund is to be paid to C.
149. Where deficiency of assets to pay legacies, specific legacy not to abate

with general legacies.-
If there is a deficiency of assets to pay legacies, a specific legacy is not liable to

abate with the general legacies.
Of Demonstrative Legacies
150. Demonstrative legacy defined.-
Where a testator bequeaths a certain sum of money, or a certain quantity of any

other commodity, and refers to a particular fund or stock so as to constitute the
same the primary fund or stock out of which payment is to be made, the legacy
is said to be demonstrative.
Explanation.-The distinction between a specific legacy and a

demonstrative legacy consists in this, that-
where specified property is given to the legatee, the legacy is

specific;
where the legacy is directed to be paid out of specified property, it

is demonstrative.
Illustrations
(i) A bequeaths to B 1,000 rupees, being part of a debt due to him from W. He
also bequeaths to C 1,000 rupees to be paid out of the debt due to him from W.
The legacy to B is specific, the legacy to C is demonstrative.
(ii) A bequeaths to B-
"ten bushels of the corn which shall grow in my field of Green Acre";
"80 chests of the indigo which shall be made at my factory of Rampur";
"10,000 rupees out of my five per cent. promissory notes of the Central
Government";
an annuity of 500 rupees "from my funded property";
"1,000 rupees out of the sum of 2,000 rupees due to me by C";
an annuity, and directs it to be paid "out of the rents arising from my

taluq of Ramnagar".
(iii) A bequeaths to B-
"10,000 rupees out of my estate at Ramnagar", or charges it on his

estate at Ramnagar;
"10,000 rupees, being my share of the capital embarked in a certain

business".
Each of these bequests is demonstrative.
151. Order of payment when legacy directed to be paid out of fund the subject
of specific legacy.-
Where a portion of a fund is specifically bequeathed and a legacy is directed to

be paid out of the same fund, the portion specifically bequeathed shall first be
paid to the legatee, and the demonstrative legacy shall be paid out of the
residue of the fund and, so far as the residue shall be deficient, out of the
general assets of the testator.
Illustration
A bequeaths to B 1,000 rupees, being part of a debt due to him from W. He also
bequeaths to C 1,000 rupees to be paid out of the debt due to him from W. The
debt due to A from W is only 1,500 rupees; of these 1,500 rupees, 1,000 rupees
belong to B, and 500 rupees are to be paid to C. C is also to receive 500 rupees
out of the general assets of the testator.
Of the Payment of liabilities in respect of the Subject of a Bequest
167. Non-liability of executor to exonerate specific legatees.-
(1) Where property specifically bequeathed is subject to the death of the

testator to any pledge, lien or incumbrance created by the testator himself or by
any person under whom he claims, then, unless a contrary intention appears by
the Will, the legatee, if he accepts the bequest, shall accept it subject to such
pledge or incumbrance, and shall (as between himself and the testator's estate)
be liable to make good the amount of such pledge or incumbrance.
(2) A contrary intention shall not be inferred from any direction which the Will
may contain for the payment of the testator's debts generally.
Explanation.-A periodical payment in the nature of land-revenue or in the

nature of rent is not such an incumbrance as is contemplated by this
section.
Illustrations
(i) A bequeaths to B the diamond ring given to him by C. At A's death the ring is
held in pawn by D to whom it has been pledged by A. It is the duty of A's
executor, if the state of the testator's assets will allow them, to allow B to
redeem the ring.
(ii) A bequeaths to B a zamindari which at A's death is subject to a mortgage for

10,000 rupees; and the whole of the principal sum, together with interest to the
amount of 1,000 rupees, is due at A's death. B, if he accepts the bequest,
accepts it subject to this charge, and is liable, as between himself and A's
estate, to pay the sum of 11,000 rupees thus due.
168. Completion of testator's title to things bequeathed to be at cost of his

estate.-
Where anything is to be done to complete the testator's title to the thing

bequeathed, it is to be done at the cost of the testator's estate.
Illustrations
(i) A, having contracted in general terms for the purchase of a piece of land at a
certain price, bequeaths to B, and dies before he has paid the purchase-money.
The purchase-money must be made good out of A's assets.
(ii) A, having contracted for the purchase of a piece of land for a certain sum of
money, one-half of which is to be paid down and the other half secured by
mortgage of the land, bequeaths it to B, and dies before he has paid or secured
any part of the purchase-money. One-half of the purchase-money must be paid
out of A's assets.
169. Exoneration of legatee's immovable property for which land-revenue or

rent payable periodically.-
Where there is a bequest of any interest in immovable property in respect of

which payment in the nature of land-revenue or in the nature of rent has to be
made periodically, the estate of the testator shall (as between such estate and
the legatee) make good such payments or a proportion of them, as the case
may be, up to the day of his death.
Illustration
A bequeaths to B a house, in respect of which 365 rupees are payable annually

by way of rent. A pays his rent at the usual time, and dies 25 days after. A's
estate will make good 25 rupees in respect of the rent.
170. Exoneration of specific legatee's stock in joint stock company.-
In the absence of any direction in the Will, where there is a specific bequest of
stock in a joint-stock company, if any call or other payment is due from the
testator at the time of his death in respect of the stock, such call or payment
shall, as between the testator's estate and the legatee, be borne by the estate;
but, if any call or other payment becomes due in respect of such stock after the
testator's death, the same shall, as between the testator's estate and the
legatee, be borne by the legatee if he accepts the bequest.
Illustrations
(i) A bequeaths to B his share in a certain railway. At A's death there was due
from him the sum of 100 rupees in respect of each share, being the amount of a
call which had been duly made and the sum of five rupees in respect of each
share, being the amount of interest which had accrued due in respect of the call.
These payments must be borne by A's estate.
(ii) A has agreed to take 50 shares in an intended joint-stock company, and has
contracted to pay up 100 rupees in respect of each share, which sum must be
paid before his title to the shares can be completed. A bequeathes these shares
to B. The estate of A must make good the payments which were necessary to
complete A's title.
(iii) A bequeaths to B his shares in a certain railway. B accepts the legacy. After
A's death a call is made in respect of the shares. B must pay the call.
(iv) A bequeaths to B his shares in a joint-stock company. B accepts the

bequest. Afterwards the affairs of the company are wound up, and each
shareholder is called upon for contribution. The amount of the contribution must
be borne by the legatee.
(v) A is the owner of ten shares in a railway company. At a meeting held during
his life-time a call is made of fifty rupees per share, payable by three
instalments. A bequeaths his shares to 6, and dies between the day fixed for the
payment of the first and the day fixed for the payment of the second instalment,
and without having paid the first instalment. A's estate must pay the first
instalment, and B, if he accepts the legacy, must pay the remaining instalments.
Of Bequests of Things described in General Terms
171. Bequest of thing described in general terms.-
If there is a bequest of something described in general terms the executor must

purchase for the legatee what may reasonably be considered to answer the
description.
Illustrations
(i) A bequesths to B a pair of carriage-horses or a diamond ring. The executor

must provide the legatee with such articles if the state of the assets will allow it.
(ii) A bequeaths to B "my pair of carriage-horses". A had no carriage-horses at

the time of his death. The legacy fails.
Of Bequest of the Interest or Produce of a Fund
172. Bequest of interest or produce of fund.-
Where the interest or produce of a fund is bequeathed to any person, and the
Will affords no indication of an intention that the enjoyment of the bequest
should be of limited duration, the principal, as well as the interest, shall belong
to the legatee.
Illustrations
(i) A bequeaths to B the interest of his 5 per cent. promissory notes of the
Central Government. There is no other clause in the Will affecting those
securities. B is entitled to A's 5 per cent. promissory notes of the Central
Government.
(ii) A bequeaths the interest of his 51/2 per cent. promissory notes of the
Central Government to B for his life, and after his death to C. B is entitled to the
interest of the notes during his life and C is entitled to the notes upon B's death.
(iii) A bequeaths to B the rents of his lands at X. B is entitled to the lands.
Of Bequests of Annuities
173. Annuity created by Will payable for life only unless contrary intention
appears by Will.-
Where an annuity is created by Will, the legatee is entitled to receive it for his
life only, unless a contrary intention appears by the Will, notwithstanding that
the annuity is directed to be paid out of the property generally, or that a sum of
money is bequeathed to be invested in the purchase of it.
Illustrations
(i) A bequeaths to B 500 rupees a year. B is entitled during his life to receive the
annual sum of 500 rupees.
(ii) A bequeaths to B the sum of 500 rupees monthly. B is entitled during his life
to receive the sum of 500 rupees every month.
(iii) A bequeaths an annuity of 500 rupees to B for life, and on B's death to C. B
is entitled to an annuity of 500 rupees during his life. C, if he survives B, is
entitled to an annuity of 500 rupees from B's death until his own death.
174. Period of vesting where Will directs that annuity be provided out of

proceeds of property, or out of property generally, or where money
bequeathed to be invested in purchase of annuity.-
Where the Will directs that an annuity shall be provided for any person out of
the proceeds of property, or out of property generally, or where money is
bequeathed to be invested in the purchase of any annuity for any person, on the
testator's death, the legacy vests in interest in the legatee, and he is entitled at
his option to have an annuity purchased for him or to receive the money
appropriated for that purpose by the Will.
Illustrations
(i) A by his Will directs that his executors shall, out of his property, purchase an
annuity of 1,000 rupees for B. B is entitled at his option to have an annuity of
1,000 rupees for his life purchased for him or to receive such a sum as will be
sufficient for the purchase of such an annuity.
(ii) A bequeaths a fund to B for his life, and directs that after B's death, it shall
be laid out in the purchase of an annuity for C. B and C survive the testator. C
dies in B's life-time. On B's death the fund belongs to the representative of C.
175. Abatement of annuity.-
Where an annuity is bequeathed, but the assets of the testator are not sufficient
to pay all the legacies given by the Will, the annuity shall abate in the same
proportion as the other pecuniary legacies given by the Will.
176. Where gift of annuity and residuary gift, whole annuity to be first

satisfied.-
Where there is a gift of an annuity and a residuary gift, the whole of the annuity
is to be satisfied before any part of the residue is paid to the residuary legatee,
and, if necessary, the capital of the testator's estate shall be applied for that
purpose.
Of Legacies to Creditors and Portioners
177. Creditor prima facie entitled to legacy as well as debt.-
Where a debtor bequeaths a legacy to his creditor, and it does not appear from
the Will that the legacy is meant as a satisfaction of the debt, the creditor shall
be entitled to the legacy, as well as to the amount of the debt.
178. Child prima facte entitled to legacy as well as portion.-
Where a parent, who is under obligation by contract to provide a portion for a

child, fails to do so, and afterwards bequeaths a legacy to the child, and does
not intimate by his Will that the legacy is meant as a satisfaction of the portion,
the child shall be entitled to receive the legacy, as well as the portion.
Illustration
A, by articles entered into in contemplation of his marriage with B covenanted

that he would pay to each of the daughters of the intended marriage a portion of
20,000 rupees on her marriage. This covenant having been broken. A bequeaths
20,000 rupees to each of the married daughters of himself and B. The legatees
are entitled to the benefit of this bequest in addition to their portions.
179. No ademption by subsequent provision for legatee.-
No bequest shall be wholly or partially adeemed by a subsequent provision made

by settlement or otherwise for the legatee.
Illustrations
(i) A bequeaths 20,000 rupees to his son B. He afterwards gives to B the sum of
20,000 rupees. The legacy is not thereby adeemed.
(ii) A bequeaths 40,000 rupees to B, his orphan niece whom he had brought up
from her infancy. Afterwards, on the occasion of B's marriage, A settles upon her
the sum of 30,000 rupees. The legacy is not thereby diminished.
Of Election
180. Circumstances in which election takes place.-
Where a person, by his Will professes to dispose of some thing which he has no
right to dispose of, the person to whom the thing belongs shall elect either to
confirm such disposition or to dissent from it, and, in the latter case, he shall
give up any benefit which may have been provided for him by the Will.
181. Devolution of interest relinquished by owner.-
An interest relinquished in the circumstances stated in section 180 shall devolve

as if it had not been disposed of by the Will in favour of the legatee, subject,
nevertheless, to the charge of making good to the disappointed legatee the
amount or value of the gift attempted to be given to him by the Will.
182. Testator's belief as to his ownership immaterial.-
The provisions of sections 180 and 181 apply whether the testator does or does
not believe that which he professes to dispose of by his Will to be his own.
Illustrations
(i) The farm of Sultanpur was the property of C. A bequeathed it to B, giving a

legacy of 1,000 rupees to C. C has elected to retain his farm of Sultanpur, which
is worth 800 rupees. C forefeits his legacy of 1,000 rupees, of which 800 rupees
goes to B, and the remaining 200 rupees falls into the residuary bequest, or
devolves according to the rules of intestate succession, as the case may be.
(ii) A bequeaths an estate to B in case B's elder brother (who is married and has
children) shall leave no issue living at his death. A also bequeaths to C a jewel,
which belongs to B. B must elect to give up the jewel or to lose the estate.
(iii) A bequeaths to B 1,000 rupees, and to C an estate which will, under a

settlement, belong to B if his elder brother (who is married and has children)
shall leave no issue living at his death. B must elect to give up the estate or to
lose the legacy.
(iv) A, a person of the age of 18, domiciled in India but owning real property in
England, to which C is heir at law, bequeaths a legacy to C and, subject thereto,
devises and bequeaths to B "all my property whatsoever and wheresoever", and
dies under 21. The real property in England does not pass by the Will. C may
claim his legacy without giving up the real property in England.
183. Bequest for man's benefit how regarded for purpose of election.-
A bequest for a person's benefit is, for the purpose of election, the same thing
as a bequest made to himself.
Illustration
The farm of Sultanpur Khurd being the property of B, A bequeathed it to C; and

bequeathed another farm called Sultanpur Buzurg to his own executors with a
direction that it should be sold and the proceeds applied in payment of B' debts.
B must elect whether he will abide by the Will, or keep his farm of Sultanpur
Khurd in opposition to it.
184. Person deriving benefit indirectly not put to election.-
A person taking no benefit directly under a Will, but deriving a benefit under it
indirectly, is not put to his election.
Illustration
The lands of Sultanpur are settled upon C for life, and after his death upon, D,
his only child. A bequeaths the lands of Sultanpur to B, and 1,000 rupees to C. C
dies intestate shortly after the testator, and without having made any election. D
takes out administration to C, and as administrator elects on behalf of C's estate
to take under the Will. In that capacity he receives the legacy of 1,000 rupees
and accounts to B for the rents of the lands of Sultanpur which accrued after the
death of the testator and before the death of C. In his individual character he
retains the lands of Sultanpur in opposition to the Will.
185. Person taking in individual capacity under Will may in other character

elect to take in opposition.-
A person who in his individual capacity takes a benefit under a Will may, in
another character, elect to take in opposition to the Will.
Illustration
The estate of Sultanpur is settled upon A for life, and after his death, upon B. A
leaves the estate of Sultanpur to D, and 2,000 rupees to B, and 1,000 rupees to
C, who is B's only child. B dies intestate, shortly after the testator, without
having made any election. C takes out administration to B, and as administrator
elects to keep the estate of Sultanpur in opposition to the Will, and to relinquish
the legacy of 2,000 rupees. C may do this, and yet claim his legacy of 1,000
rupees under the Will.
186. Exception to provisions of last six sections.-
Notwithstanding anything contained in sections 180 to 185, where a particular

gift is expressed in the Will to be in lieu of something belonging to the legatee
which is also in terms disposed of by the Will, then, if the legatee claims that
thing, he must relinquish the particular gift, but he is not bound to relinquish
any other benefit given to him by the Will.
Illustration
Under A's marriage-settlement his wife is entitled, if she survives him, to the
enjoyment of the estate of Sultanpur during her life. A by his Will bequeaths to
his wife an annuity of 200 rupees during her life, in lieu of her interest in the
estate of Sultanpur, which estate he bequeaths to his son. He also gives his wife
a legacy of 1,000 rupees. The widow elects to take what she is entitled to under
the settlement. She is bound to relinquish the annuity but not the legacy of
1,000 rupees.
187. When acceptance of benefit given by Will constitutes election to take

under Will.-
Acceptance of a benefit given by a Will constitutes an election by the legatee to

take under the Will, if he had knowledge of his right to elect and of those
circumstances which would influence the judgment of a reasonable man in
making an election, or if he waives inquiry into the circumstances.
Illustrations
(i) A is owner of an estate called Sultanpur Khurd, and has a life interest in
another estate called Sultanpur Buzurg to which upon his death his son B will be
absolutely entitled. The Will of A gives the estate of Sultanpur Khurd to B and
the estate of Sultanpur Buzurg to C, B, in ignorance of his own right to the
estate of Sultanpur Buzurg, allows C to take possession of it, and enters into
possession of the estate of Sultanpur Khurd. B has not confirmed the bequest of
Sultanpur Buzurg to C.
(ii) B, the eldest son of A, is the possessor of an estate called Sultanpur. A

bequeaths Sultanpur to C and to B the residue of A's property. B having been
informed by A's executors that the residue will amount to 5,000 rupees, allows C
to take possession of Sultanpur. He afterwards discovers that the residue does
not amount to more than 500 rupees. B has not confirmed the bequest of the
estate of Sultanpur to C.
188. Circumstances in which knowledge or waiver is presumed or inferred.--
(1) Such knowledge or waiver of inquiry shall, in the absence of evidence to the
contrary, be presumed if the legatee has enjoyed for two years the benefits
provided for him by the Will without doing any act to express dissent.
(2) Such knowledge or waiver of inquiry may be inferred from any act of the
legatee which renders it impossible to place the persons interested in the
subject-matter of the bequest in the same condition as if such act had not been
done.
Illustration
A bequeaths to B an estate to which C is entitled, and to C a coal mine. C takes,

possession of the mine and exhausts it. He has thereby confirmed the bequest of
the estate to B.
189. When testator's representatives may call upon legatee to elect.-
If the legatee does not, within one year after the death of the testator signify to
the testator's representatives his intention to confirm or to dissent from, the
Will, the representatives shall, upon the expiration of that period, require him to
make his election; and, if he does not comply with such requisition within a
reasonable time after he has received it, he shall be deemed to have elected to
confirm the Will.
190. Postponement of election in case of disability.-
In case of disability the election shall be postponed until the disability ceases, or
until the election is made by some competent authority.
Of Gifts in Contemplation of Death
191. Property transferable by gift made in contemplation of death.-
(1) A man may dispose, by gift made in contemplation of death, of any movable
property which he could dispose of by Will.
(2) A gift is said to be made in contemplation of death where a man, who is ill
and expects to die shortly of his illness, delivers, to another the possession of
any movable property to keep as a gift in case the donor shall die of that illness.
(3) Such a gift may be resumed by the giver; and shall not take effect if he
recovers from the illness during which it was made; nor if he survives the person
to whom it was made.
Illustrations
(i) A, being ill, and in expectation of death, delivers to B, to be retained by him

in case of A's death,-
a watch;
a bond granted by C to A;
a bank-note;
a promissory note of the Central Government endorsed in blank;
a bill of exchange endorsed in blank;
certain mortgage-deeds.
A dies of the illness during which he delivered these articles.
B is entitled to-
the watch;
the debt secured by C's bond;
the bank-note;
the promissory note of the Central Government;
the bill of exchange;
the money secured by the mortgage-deeds.
(ii) A, being ill, and in expectation of death, delivers to B the key of a trunk or
the key of a warehouse in which goods of bulk belonging to A are deposited,
with the intention of giving him the control over the contents of the trunk, or
over the deposited goods, and desires him to keep them in case of A's death. A
dies of the illness during which he delivered these articles. B is entitled to the
trunk and its contents or to A's goods of bulk in the warehouse.
(iii) A, being ill, and in expectation of death, puts aside certain articles in
separate parcel and marks upon the parcels respectively the names of B and C.
The parcels are not delivered during the life of A. A dies of the illness during
which he set aside the parcels. B and C are not entitled to the contents of the
parcels.
PROBATE, LETTERS OF ADMINISTRATION AND ADMINISTRATION OF ASSETS
OF DECEASED
217. Application of Part.-
Save as otherwise provided by this Act or by any other law for the time being in
force, all grants of probate and letters of administration with the Will annexed
and the administration of the assets of the deceased in cases of intestate
succession shall be made or carried out, as the case may be, in accordance with
the provisions of this Part.
Of Grant of Probate and Letters of Administration
218. To whom administration may be granted, where deceased is a Hindu,

Mohammedan, Buddhist, Sikh, Jain or exempted person.-
(1) If the deceased has died intestate and was a Hindu, Mohammedan, Buddhist,
Sikh or Jain or an exempted person, administration of his estate may be granted
to any person who, according to the rules for the distribution of the estate
applicable in the case of such deceased, would be entitled to the whole or any
part of such deceased's estate.
(2) When several such persons apply for such administration, it shall be in the
discretion of the Court to grant it to any one or more of them.
(3) When no such person applies, it may be granted to a creditor of the

deceased.
219. Where deceased is not a Hindu, Mohammedan, Buddhist, Sikh, Jain or

exempted person.-
If the deceased has died intestate and was not a person belonging to any of the
classes referred to in section 218, those who are connected with him, either by
marriage or by consanguinity, are entitled to obtain letters of administration of
his estate and effects in the order and according to the rules hereinafter stated,
namely:-
(a) If the deceased has left a widow, administration shall be granted to

the widow, unless the Court sees cause to exclude her, either on the
ground of some personal disqualification, or because she has no interest
in the estate of the deceased.
Illustrations
(i) The widow is a lunatic or has committed adultery or has been

barred by her marriage settlement of all interest in her husband's
estate. There is cause for excluding her from the administration.
(ii) The widow has married again since the decease of her
husband. This is not good cause for her exclusion.
(b) If the Judge thinks proper, he may associate any person or persons
with the widow in the administration who would be entitled solely to the
administration if there were no widow.
(c) If there is no widow, or if the Court sees cause to exclude the widow,
it shall commit the administration to the person or persons who would be
beneficially entitled to the estate according to the rules for the
distribution of an intestate's estate:
Provided that, when the mother of the deceased is one of the class
of persons so entitled, she shall be solely entitled to
administration.
(d) Those who stand in equal degree of kindred to the deceased are
equally entitled to administration.
(e) The husband surviving his wife has the same right of administration
of her estate as the widow has in respect of the estate of her husband.
(f) When there is no person connected with the deceased by marriage or

consanguinity who is entitled to letters of administration and willing to
act, they may be granted to a creditor.
(g) Where the deceased has left property in India, letters of

administration shall be granted according to the foregoing rules,
notwithstanding that he had his domicile in a country in which the law
relating to estate and intestate succession differs from the law of India.
CASE LAW
Scope of Probate Proceedings
The testator executed a Will in favour of his sister and the validity was
challenged by the testator's wife. Her capacity to challenge the Will was not
questioned but the question whether she was the legally wedded wife of the
testator and/or there was any divorce between them were held to be matters
irrelevant for deciding the grant of probate. The probate proceedings are
restricted to proof of legal and valid execution of Will; Suraj Devi v. Sita
Devi, MANU/RH/0003/1996 : AIR 1996 Raj 6.
Provisions of section 279 of Indian Succession Act are not mandatory but only
directory. That being so failure of application to make statement in the
application that the Will was never the subject-matter of some earlier
proceeding in relation to grant of probate does not entail dismissal of the
petition on that ground; Jamuna Bai v. Surendra Kumar, MANU/MP/0068/1995 :
AIR 1995 MP 274.
The form provided under section 281 of the Indian Succession Act is directory,
being a guideline, and does nowhere say that if the verification is not made in
accordance with section 281 then the petition is liable to be rejected. In other
words, the provision about verification of the petition is recommendatory and
not mandatory and an omission to verify is not fatal to the probate proceedings;
Jamuna Bai v. Surendra Kumar, MANU/MP/0068/1995 : AIR 1995 MP 274.
Step-sister of the testator had interest in the estate of the deceased as

contemplated by section 283(1)(c) of the Succession Act, therefore, she is
entitled to apply for revocation of the grant; Late Rajo Singh Ramautar Singh (in
re:), MANU/BH/0025/1995 : AIR 1995 Pat 122.
Title to property in the Will can not be decided in probate of letters of

administration proceedings; Verghese v. Oommen, MANU/KE/0020/1994 : AIR
1994 Ker 85.
The probate Court must have exclusive jurisdiction to decide which is the last
Will in the case of contest between the two Wills; Ram Shankar v. Balakdas, AIR
1992 MP 224.
220. Effect of letters of administration.-
Letters of administration entitle the administrator to all rights belonging to the

intestate as effectually as if the administration had been granted at the moment
after his death.
221. Acts not validated by administration.-
Letters of administration do not render valid any intermediate acts of the

administrator tending to the diminution or damage of the intestate's estate.
222. Probate only to appointed executor.-
(1) Probate shall be granted only to an executor appointed by the Will.
(2) The appointment may be expressed or by necessary implication.
Illustrations
(i) A Will that C be his executor if B will not. B is appointed executor by

implication.
(ii) A gives a legacy to B and several legacies to other persons among the rest to
his daughter-in-law C, and adds "but should the within-named C be not living I
do constitute and appoint B my whole and sole executrix". C is appointed
executrix by implication.
(iii) A appoints several persons executors of his Will and codicils and his nephew
residuary legatee, and in another codicil are these words,-"I appoint my nephew
my residuary legatee to discharge all lawful demands against my Will and
codicils signed of different dates". The nephew is appointed an executor by
implication.
223. Persons to whom probate cannot be granted.-
Probate cannot be granted to any person who is a minor or is of unsound mind

nor to any association of individuals unless it is a company which satisfies the
conditions prescribed by rules to be made by notification in the Official Gazette,
by the State Government, in this behalf.
224. Grant of probate to several executors simultaneously or at different

times.-
When several executors are appointed, probate may be granted to them all
simultaneously or at different times.
Illustration
A is an executor of B's Will by express appointment and C an executor of it by

implication. Probate may be granted to A and C at the same time or to A first
and then to C, or to C first and then to A.
225. Separate probate of codicil discovered after grant of probate.-
(1) If a codicil is discovered after the grant of probate, a separate probate of

that codicil may be granted to the executor, if it in no way repeals the
appointment of executors made by the Will.
(2) If different executors are appointed by the codicil, the probate of the Will
shall be revoked, and a new probate granted of the Will and the codicil together.
226. Accrual of representation to surviving executor.-
When probate has been granted to several executors, and one of them dies the
entire representation of the testator accrues to the surviving executor or
executors.
227. Effect of probate.-
Probate of a Will when granted establishes the Will from the death of the
testator, and renders valid all intermediate acts of the executor as such.
228. Administration, with copy annexed, of authenticated copy of Will proved

abroad.-
When a Will has been proved and deposited in a Court of competent jurisdiction
situated beyond the limits of the State, whether within or beyond the limits of
India, and a properly authenticated copy of the Will is produced, letters of
administration may be granted with a copy of such copy annexed.
229. Grant of administration where executor has not renounced.-
When a person appointed an executor has not renounced the executorship,

letters of administration shall not be granted to any other person until a citation
has been issued, calling upon the executor to accept or renounce his
executorship:
Provided that, when one or more of several executors have proved a Will,
the Court may, on the death of the survivor of those who have proved,
grant letters of administration without citing those who have not proved.
230. Form and effect of renunciation of executorship.-
The renunciation may be made orally in the presence of the Judge, or by a

writing signed by the person renouncing, and when made shall preclude him
from ever thereafter applying for probate of the Will appointing him executor.
231. Procedure where executor renounces or fails to accept within time

limited.-
If an executor renounces or fails to accept an executorship within the time

limited for the acceptance or refusal thereof, the Will may be proved and letters
of administration, with a copy of the Will annexed, may be granted to the person
who would be entitled to administration in case of intestacy.
232. Grant of administration of universal or residuary legatees.-
When-
(a) the deceased has made a Will, but has not appointed an executor, or
(b) the deceased has appointed an executor who is legally incapable or

refuses to act, or who has died before the testator or before he has
proved the Will, or
(c) the executor dies after having proved the Will, but before he has
administered all the estate of the deceased,
a universal or a residuary legatee may be admitted to prove the Will, and letters
of administration with the Will annexed may be granted to him of the whole
estate, or of so much thereof as may be unadministered.
233. Right to administration of representative of deceased residuary legatees.-
When a residuary legatee who has a beneficial interest survives the testator, but
dies before the estate has been fully administered, his representative has the
same right to administration with the Will annexed as such residuary legatee.
234. Grant of administration where no executor, nor residuary legatee, nor

representative of such legatee.-
When there is no executor and no residuary legatee or representative of a

residuary legatee, or he declines or is incapable to act, or cannot be found, the
person or persons who would be entitled to the administration of the estate of
the deceased if he had died intestate, or any other legatee having a beneficial
interest, or a creditor, may be admitted to prove the Will, and letters of
administration may be granted to him or them accordingly.
235. Citation before grant of administration to legatee other than universal or

residuary.-
Letters of administration with the Will annexed shall not be granted to any
legatee other than a universal or a residuary legatee, until a citation has been
issued and published in the manner hereinafter mentioned, calling on the next-
of-kin to accept or refuse letters of administration.
236. To whom administration may not be granted.-
Letters of administration cannot be granted to any person who is a minor or is of

unsound mind, nor to any association of individuals unless it is a company which
satisfies the conditions prescribed by rules to be made by notification in the
Official Gazette, by the State Government in this behalf.
OF LIMITED GRANTS
Grants limited in duration
237. Probate of copy or draft of lost Will.-
When a Will has been lost or mislaid since the testator's death, or has been
destroyed by wrong or accident and not by any act of the testator, and a copy or
the draft of the Will has been preserved, probate may be granted of such copy
or draft, limited until the original or a properly authenticated copy of it is
produced.
238. Probate of contents of lost or destroyed Will.-
When a Will has been lost or destroyed and no copy has been made nor the
draft preserved, probate may be granted of its contents if they can be
established by evidence.
239. Probate of copy where original exists.-
When the Will is in the possession of a person residing out of the state in which
application for probate is made, who has refused or neglected to deliver it up,
but a copy has been transmitted to the executor, and it is necessary for the
interests of the estate that probate should be granted without waiting for the
arrival of the original, probate may be granted of the copy so transmitted,
limited until the Will or an authenticated copy of it is produced.
240. Administration until Will produced.-
Where no Will of the deceased is forthcoming, but there is reason to believe that
there is a Will in existence, letters of administration may be granted, limited
until the Will or an authenticated copy of it is produced.
Grants for the use and benefit of others having right
241. Administration, with Will annexed, to attorney of absent executor.-
When any executor is absent from the State in which application is made, and
there is no executor within the State willing to act, letters of administration, with
the Will annexed, may be granted to the attorney or agent of the absent
executor, for the use and benefit of his principal, limited until he shall obtain
probate or letters of administration granted to himself.
242. Administration, with Will annexed, to attorney of absent person who, if

present, would be entitled to administer.-
When any person to whom, if present, letters of administration, with the Will
annexed, might be granted, is absent from the State, letters of administration,
with the Will annexed may be granted to his attorney or agent, limited as
mentioned in section 241.
243. Administration, to attorney of absent person entitled to administer in case

of intestacy.-
When a person entitled to administration in case of intestacy is absent from the

State, and no person equally entitled is willing to act, letters of administration
may be granted to the attorney or agent of the absent person, limited as
244. Administration, during minority of sole executor or residuary legatee.-
When a minor is sole executor or sole residuary legatee, letters of

administration, with the Will annexed, may be granted to the legal guardian of
such minor or to such other person as the Court may think fit until the minor has
attained his majority at which period, and not before, probate of the Will shall be
granted to him.
245. Administration, during minority of several executors or residuary

legatees.-
When there are two or more minor executors and no executor who has attained
majority, or two or more residuary legatees and no residuary legatee who has
attained majority, the grant shall be limited until one of them shall have attained
his majority.
246. Administration, for use and benefit of lunatic or minor.-
If a sole executor or a sole universal or residuary legatee, or a person who

would be solely entitled to the estate of the intestate according to the rule for
the distribution of intestate's estates applicable in the case of the deceased, is a
minor or lunatic, letters of administration, with or without the Will annexed, as
the case may be, shall be granted to the person to whom the care of his estate
has been committed by competent authority, or, if there is no such person, to
such other person as the Court may think fit to appoint, for the use and benefit
of the minor or lunatic until he attains majority or becomes of sound mind, as
the case may be.
247. Administration, pendente lite.-
Pending any suit touching the validity of the Will of a deceased person or for
obtaining or revoking any probate or any grant of letters of administration the
Court may appoint an administrator of the estate of such deceased person, who
shall have all the rights and powers of a general administrator, other than the
right of distributing such estate, and every such administrator shall be subject to
the immediate control of the Court and shall act under its direction.
Grants for Special Purposes

248. Probate limited to purpose specified in Will.-
If an executor is appointed for any limited purpose specified in the Will, the
probate shall be limited to that purpose, and if he should appoint an attorney or
agent to take administration on his behalf, the letters of administration, with the
Will annexed, shall be limited accordingly.
249. Administration, with Will annexed, limited to particular purpose.-
If an executor appointed generally gives an authority to an attorney or agent to

prove a Will on his behalf, and the authority is limited to a particular purpose,
the letters of administration, with the Will annexed, shall be limited accordingly.
250. Administration, limited to property in which person has beneficial

interest.-
Where a person dies, leaving property of which he was the sole or surviving
trustee, or in which he had no beneficial interest on his own account and leaves
no general representative, or one who is unable or unwilling to act as such,
letters of administration, limited to such property, may be granted to the
beneficiary, or to some other person on his behalf.
251. Administration limited to suit.-
When it is necessary that the representative of a person deceased be made a

party to a pending suit, and the executor, or person entitled to administration is
unable or unwilling to act, letters of administration may be granted to the
nominee of a party in such suit, limited for the purpose of representing the
deceased in the said suit, or in any other cause or suit which may be
commenced in the same or in any other Court between the parties, or any other
parties, touching the matters at issue in the said cause or suit, and until a final
decree shall be made therein and carried into complete execution.
252. Administration limited to purpose of becoming party to suit to be brought

against administrator.-
If, at the expiration of twelve months from the date of any probate or letters of
administration, the executor or administrator to whom the same has been
granted is absent from the State within which the Court which has granted the
probate or letters of administration exercises jurisdiction, the court may grant,
to any person whom it may think fit, letters of administration limited to the
purpose of becoming and being made a party to a suit to be brought against the
executor or administrator, and carrying the decree which may be made therein
into effect.
253. Administration limited to collection and preservation of deceased's
property.-
In any case in which it appears necessary for preserving the property of a

deceased person, the Court within whose jurisdiction any of the property is
situate may grant to any person, whom such Court may think fit, letters of
administration limited to the collection and preservation of the property of the
deceased and to the giving of discharges for debts due to his estate, subject to
the directions of the Court.
254. Appointment, as administrator, of person other than one who, in ordinary

circumstances, would be entitled to administration.-
(1) When a person has died intestate, or leaving a Will of which there is no
executor willing and competent to act or where the executor is, at the time of
the death of such person, resident out of the State, and it appears to the Court
to be necessary or convenient to appoint some person to administer the estate
or any part thereof, other than the person who, in ordinary circumstances,
would be entitled to a grant of administration, the Court may, in its discretion,
having regard to consanguinity, amount of interest, the safety of the estate and
probability that it will be properly administered, appoint such person as it thinks
fit to be an administrator.
(2) In every such case letters of administration may be limited or not as the
Court thinks fit.
Grants with Exception
255. Probate or administration, with Will annexed, subject to exception.-
Whenever the nature of the case requires that an exception be made probate of
a Will, or letters of administration with the Will annexed, shall be granted
subject to such exception.
256. Administration with exception.-
Whenever the nature of the case requires that an exception be made, letters of
administration shall be granted subject to such exception.
Grants of the Rest
257. Probate or administration of rest.-
Whenever a grant with exception of probate, or of letters of administration with

or without the Will annexed, has been made, the person entitled to probate or
administration of the remainder of the deceased's estate may take a grant of
probate or letters of administration as the case may be, of the rest of the
deceased's estate.
Grant of Effects Unadministered
258. Grant of effects unadministered.-
If an executor to whom probate has been granted has died, leaving a part of the
testator's estate unadministered, a new representative may be appointed for the
purpose of administering such part of the estate.
259. Rules as to grants of effects unadministered.-
In granting letters of administration of an estate not fully administered, the

Court shall be guided by the same rules as apply to original grants, and shall
grant letters of administration to those persons only to whom original grants
might have been made.
260. Administration when limited grant expired and still some part of estate
unadministered.-
When a limited grant has expired, by efflux of time, or the happening of the
event or contingency on which it was limited, and there is still some part of the
deceased's estate unadministered, letters of administration shall be granted to
those persons to whom original grants might have been made.
Alteration and Revocation of Grants
261. What errors may be rectified by Court.-
Errors in names and descriptions, or in setting forth the time and place of the
deceased's death or the purpose in a limited grant, may be rectified by the Court
and the grant of probate or letters of administration may be altered and
amended accordingly.
262. Procedure where codicil discovered after grant of administration with Will

annexed.-
If, after the grant of letters of administration with the Will annexed, a codicil is
discovered, it may be added to the grant on due proof and identification, and the
grant may be altered and amended accordingly.
263. Revocation or annulment for just cause.-
The grant of probate or letters of administration may be revoked or annulled for

just cause.
Explanation.-Just cause shall be deemed to exist where-
(a) the proceedings to obtain the grant were defective in

substance; or
(b) the grant was obtained fraudulently by making a false

suggestion, or by concealing from the Court something material to
the case; or
(c) the grant was obtained by means of an untrue allegation of a

fact essential in point of law to justify the grant, though such
allegation was made in ignorance or inadvertently; or
(d) the grant has become useless and inoperative through

circumstances; or
(e) the person to whom the grant was made has wilfully and
without reasonable cause omitted to exhibit an inventory or
account in accordance with the provisions of Chapter VII of this
Part, or has exhibited under that Chapter an inventory or account
which is untrue in a material respect.
Illustrations
(i) The Court by which the grant was made had no jurisdiction.
(ii) The grant was made without citing parties who ought to have been cited.
(iii) The Will of which probate was obtained was forged or revoked.
(iv) A obtained letters of administration to the estate of B, as his widow, but it

has since transpired that she was never married to him.
(v) A has taken administration to the estate of B as if he had died intestate, but
a will has since been discovered.
(vi) Since probate was granted, a latter Will has been discovered.
(vii) Since probate was granted, a codicil has been discovered which revokes or
adds to the appointment of executors under the Will.
(viii) The person to whom probate was, or letters of administration were,

granted has subsequently become of unsound mind.
Of the Practice in Granting and Revoking Probates and Letters of

Administration
264. Jurisdiction of District Judge in granting and revoking probates, etc.-
(1) The District Judge shall have jurisdiction in granting and revoking probates
and letters of administration in all cases within his District.
(2) Except in cases to which section 57 applies, no Court in any local area
beyond the limits of the towns of Calcutta, Madras and Bombay, shall, where the
deceased is a Hindu, Mohammedan, Buddhist, Sikh or Jain or an exempted
person, receive applications for probate or letters of administration until the
Stale Government has, by a notification in the Official Gazette, authorised it so
to do.
265. Power to appoint Delegate of District Judge to deal with non-contentious

cases.-
(1) The High Court may appoint such judicial officers within any District as it
thinks fit to act for the District Judge as delegates to grant probate and letters of
administration in non-contentious cases, within such local limits as it may
prescribe:
Provided that, in the case of High Courts not established by Royal Charter
such appointments shall not be without the previous sanction of the State
Government.
(2) Persons so appointed shall be called "District Delegates".
266. District Judge's powers as to grant of probate and administration.-
The District Judge shall have the like powers and authority in relation to the
granting of probate and letters of administration, and all matters connected
therewith, as are by law vested in him in relation to any civil suit or proceeding
pending in his Court.
267. District Judge may order person to produce testamentary papers.-
(1) The District Judge may order any person to produce and bring into Court any
paper or writing, being or purporting to be testamentary, which may be shown
to be in the possession or under the control of such person.
(2) If it is not shown that any such paper or writing is in the possession or under
the control of such person, but there is reason to believe that he has the
knowledge of any such paper or writing, the Court may direct such person to
attend for the purpose of being examined respecting the same.
(3) Such person shall be bound to answer truly such questions as may be put to
him by the Court, and, if so ordered, to produce and bring in such paper or
writing, and shall be subject to the like punishment under the Indian Penal Code,
1860 (45 of 1860), in case of default in not attending or in not answering such
questions or not bringing in such paper or writing, as he would have been
subject to in case he had been a party to a suit and had made such default.
(4) The costs of the proceeding shall be in the discretion of the Judge.
268. Proceedings of District Judge's Court in relation to probate and

administration.-
The proceedings of the Court of the District Judge in relation to the granting of
probate and letters of administration shall, save as hereinafter otherwise
provided; be regulated, so far as the circumstances of the case permit, by the
Code of Civil Procedure, 1908 (5 of 1908).
269. When and how District Judge to interfere for protection of property.-
(1) Until probate is granted of the Will of a deceased person, or an administrator

of his estate is constituted, the District Judge, within whose jurisdiction any part
of the property of the deceased person is situate, is authorised and required to
interfere for the protection of such property at the instance of any person
claiming to be interested therein, and in all other cases where the Judge
considers that the property incurs any risk of loss or damage; and for that
purpose, if he thinks fit, to appoint an officer to take and keep possession of the
property.
(2) This section shall not apply when the deceased is a Hindu, Mohammedan,
Buddhist, Sikh or Jain or an exempted person, nor shall it apply to any part of
the property of an Indian Christian who has died intestate.
270. When probate or administration may be granted by District Judge.-
Probate of the Will or letters of administration to the estate of a deceased person

may be granted by a District Judge under the seal of his Court, if it appears by a
petition, verified as hereinafter provided, of the person applying for the same
that the testator or intestate, as the case may be, at the time of his decease had
a fixed place of abode, or any property, movable or immovable, within the
jurisdiction of the Judge.
CASE LAW
When it is questioned that the deceased, who has made the Will, has performed
second marriage, it will not have any adverse effect in grant of probate -
particularly the Will which has been made in favour of five sons out of second
marriage, more so when the deceased has testamentary capacity to execute the
Will bequeathing his property to anyone and, as such, such a Will cannot be
construed that it has been executed in suspicious circumstances; Arun Kumar
Singh v. Shyam Kumari, 2006 (64) ALR 254 (All HC).
271. Disposal of application made to Judge of District in which deceased had

no fixed abode.--
When the application is made to the Judge of a District in which the deceased
had no fixed abode at the time of his death, it shall be in the discretion of the
Judge to refuse the application, if in his judgment it could be disposed of more
justly or conveniently in another District, or, where the application is for letters
of administration, to grant them absolutely, or limited to the property within his
own jurisdiction.
272. Probate and letters of administration may be granted by Delegate.-
Probate and letters of administration may, upon application for that purpose to
any District Delegate, be granted by him in any case in which there is no
contention, if it appears by petition, verified as hereinafter provided, that the
testator or intestate, as the case may be, at the time of his death had a fixed
place of abode within the jurisdiction of such Delegate.
273. Conclusiveness of probate or letters of administration.-
Probate or letters of administration shall have effect over all the property and
estate, movable or immovable, of the deceased, throughout the State in which
the same is or are granted, and shall be conclusive as to the representative title
against all debtors of the deceased, and all persons holding property which
belongs to him, and shall afford full indemnity to all debtors, paying their debts
and all persons delivering up such property to the person to whom such probate
or letters of administration have been granted:
Provided that probates and letters of administration granted-
(a) by a High Court, or
(b) by a District Judge, where the deceased at the time of his

death had a fixed place of abode situate within the jurisdiction of
such Judge, and such Judge certifies that the value of the property
and estate affected beyond the limits of the State does not exceed
ten thousand rupees,
shall, unless otherwise directed by the grant, have like effect throughout
the other States.
The proviso to this section shall apply in India after the separation of
Burma and Aden from India to probates and letters of administration
granted in Burma and Aden before the date of the separation, or after
that date in proceedings which were pending at that date.
The proviso shall also apply in India after the separation of Pakistan from
India to probates and letters of administration granted before the date of
the separation, or after that date in proceedings pending at that date, in
any of the territories which on that date constituted Pakistan.
274. Transmission to High Courts of certificate of grants under proviso to

section 273.-
(1) Where probate or letters of administration has or have been granted by a

High Court or District Judge with the effect referred to in the proviso to section
273, the High Court or District Judge shall send a certificate thereof to the
following Courts, namely:-
(a) when the grant has been made by a High Court, to each of the other
High Courts;
(b) when the grant has been made by a District Judge, to the High Court
to which such District Judge is subordinate and to each of the other High
Courts.
(2) Every certificate referred to in sub-section (1) shall be made as nearly as

circumstances admit in the form set forth in Schedule IV, and such certificate
shall be filed by the High Court receiving the same.
(3) Where any portion of the assets has been stated by the petitioner, as
hereinafter provided in sections 276 and 278, to be situate within the jurisdiction
of a District Judge in another State, the Court required to send the certificate
referred to in sub-section (1) shall send a copy thereof to such District Judge,
and such copy shall be filed by the District Judge receiving the same.
275. Conclusiveness of application for probate or administration if properly

made and verified.-
The application for probate or letters of administration, if made and verified in

the manner hereinafter provided, shall be conclusive for the purpose of
authorising the grant of probate or administration; and no such grant shall be
impeached by reason only that the testator or intestate had no fixed place of
abode or no property within the District at the time of his death, unless by a
proceeding to revoke the grant if obtained by a fraud upon the Court.
276. Petition for probate.-

(1) Application for probate or for letters of administration, with the Will annexed,
shall be made by a petition distinctly written in English or in the language in
ordinary use in proceedings before the Court in which the application is made,
with the Will or, in the cases mentioned in sections 237, 238 and 239, a copy,
draft, or statement of the contents thereof, annexed, and stating-
(a) the time of the testator's death,
(b) that the writing annexed is his last Will and testament,
(c) that it was duly executed,
hands, and
(e) when the application is for probate, that the petitioner is the executor
named in the Will.
(2) In addition to these particulars, the petition shall further state,-
(a) when the application is to the District judge, that the deceased at the
time of his death had a fixed place of abode, or had some property,
situate within the jurisdiction of the judge; and
(b) when the application is to a District Delegate, that the deceased at

the time of his death had a fixed place of abode within the jurisdiction of
such Delegate.
(3) Where the application is to the District Judge and any portion of the assets
likely to come to the petitioner's hands is situate in another State, the petition
shall further state the amount of such assets in each State and the District
Judges within whose jurisdiction such assets are situate.
CASE LAW
The grant of probate or letters of administration is decisive only of the Will

propounded and not of the title etc., of the testator to the property, Re:
Kamleshwari Devi (Deceased) and Vikas Singh v. Devesh Pratap Singh, AIR
2002 Pat 24.
In one case, it has been held that Probate Court for grant of probate of Will or
letters of Administration, alone is competent to decide on question of execution
and/or validity of Will in question. The Civil Court has no jurisdiction to decide
validity of Will as propounded by petitioner; Amar Deep Singh v. State, 125
(2005) DLT 627 (Del HC).
Even when a civil suit is pending during proceedings for grant of probate and
letters of administration, it will not affect the jurisdiction of the High Court for
granting of probate; Arun Kumar Singh v. Shyam Kumari, 2006 (64) ALR 254
(All HC).
In one case, the Supreme Court has held that as per section 276 read with
sections 81 and 89 of Indian Succession Act, though Will may be found genuine,
grant of probate to the executor could be declined if the District Judge ultimately
finds that contents/ terms of the Will are vague; Gurswaroop Joshi v. Beena
Sharma, 2006 (63) ALR 814 (SC): 2006 AIR SCW 2421: MANU/SC/2201/2006 :
(2006) 5 SCC 119: 2006 (4) SCJ 268: 2006 (4) SCALE 558: 2006 (3) Supreme
733.
Beneficiary cannot be deprived of her right occurring out of Will
In Dilip D. Chowdhari v. Maharashtra Executor & Trustees, JT 2010 (6) SC 157 it

has been held by the Supreme Court that testator gave right of residence to
wife. The ultimate beneficiaries are four grand children. The Court held that the
children had right to occupy the property with wife of the testator.
In Shama Sethi v. State, 2010 III AD (Del) 298, the Delhi High Court has held
that in view of the decision of the Supreme Court in Kunwarjeet Singh Khandput
v. Kirandeep Kaur, 2008 XII AD, an application for grant of probate is only a
permission which is sought for the purpose of a legal duty which has been
created by a Will or for recognition as a testamentary trustee and is continuous
right which can be exercised any time after the death of the deceased as long as
the right to do survives and the object of the trust exists or any part of the trust,
if created, remains to be executed, the bar of limitation is not attracted. In the
case titled Thaiullothil Kunhikaman v. Kalyani,MANU/KE/0050/1990 : AIR 1990
Ker 226, it has been held that under the amended section 68 of the Indian
Evidence Act, in the case of registered Wills, it is not necessary to call an
attesting witness, unless its execution is specifically denied and section 58 of the
Evidence Act read with Order VIII, rule 5 of the CPC shows that such proof can
be dispensed with; examination of an attesting witness is, therefore,
unnecessary when the parties have denied the genuineness of the Will. Probate
of the Will is granted.
277. In what cases translation of Will to be annexed to petition. Verification of

translation by person other than Court translator.-
In cases wherein the Will, copy or draft, is written in any language other than
English or than that inordinary use in proceedings before the Court, there shall
be a translation thereof annexed to the petition by a translator of the Court, if
the language be one for which a translator is appointed; or, if the Will, copy or
draft, is in any other language, then by any person competent to translate the
same, in which case such translation shall be verified by that person in the
following manner, namely:-
"1 (A.B.) do declare that I read and perfectly understand the language
and character of the original, and that the above is a true and accurate
translation thereof."
278. Petition for letters of administration.-
(1) Application for letters of administration shall be made by petition distinctly

written as aforesaid and stating-
(a) the time and place of the deceased's death;
(b) the family or other relatives of the deceased, and their respective
residences;
(c) the right in which the petitioner claims;
hands;
(e) when the application is to the District Judge, that the deceased at the
time of his death had a fixed place of abode, or had some property,
situate within the jurisdiction of the Judge; and
(f) when the application is to a District Delegate, that the deceased at the
time of his death had a fixed place of abode within the jurisdiction of such
Delegate.
(2) Where the application is to the District Judge and any portion of the assets
likely to come to the petitioner's hands is situate in another State, the petition
shall further state the amount of such assets in each State and the District
Judges within whose jurisdiction such assets are situate.
279. Addition to statement in petition, etc., for probate or letters of

administration in certain cases.-
(1) Every person applying to any of the Courts mentioned in the proviso to
section 273 for probate of a Will or letters of administration of an estate
intended to have effect throughout India, shall state in his petition, in addition to
the matters respectively required by section 276 and section 278, that to the
best of his belief no application has been made to any other Court for a probate
of the same Will or for letters of administration of the same estate, intended to
have such effect as last aforesaid,or, where any such application has been
made, the Court to which it was made, the person or persons by whom it was
made and the proceedings (if any) had thereon.
(2) The Court to which any such application is made under the proviso to section
273 may, if it thinks fit, reject the same.
280. Petition for probate, etc., to be signed and verified.-
The petition for probate or letters of administration shall in all cases be

subscribed by the petitioner and his pleader, if any, and shall be verified by the
petitioner in the following manner, namely:-
"I (A.B.), the petitioner in the above petition, declare that what is stated
therein is true to the best of my information and belief."
281. Verification of petition for probate, by one witness to Will.-
Where the application is for probate, the petition shall also be verified by at least
one of the witnesses to the Will (when procurable) in the manner or to the effect
following, namely:-
"I (C.D.), one of the witnesses to the last Will and testament of the
testator mentioned in the above petition, declare that I was present and
saw the said testator affix his signature (or mark) thereto (or that the
said testator acknowledged the writing annexed to the above petition to
be his last Will and testament in my presence)."
282. Punishment for false averment in petition or declaration.-
If any petition or declaration which is hereby required to be verified contains any

averment which the person making the verification knows or believes to be
false, such person shall be deemed to have committed an offence under section
193 of the Indian Penal Code, 1860 (45 of 1860).
283. Powers of District Judge.-
(1) In all cases the District judge or District Delegate may, if he thinks proper,-
(a) examine the petitioner in person, upon oath;
(b) require further evidence of the due execution of the Will or the right of the
petitioner to the letters of administration, as the case may be;
(c) issue citations calling upon all persons claiming to have any interest in the
estate of the deceased to come and see the proceedings before the grant of
probate or letters of administration.
(2) The citation shall be fixed up in some conspicuous part of the court-house,
and also the office of the Collector of the District and otherwise published or
made known in such manner as the Judge or District Delegate issuing the same
may direct.
(3) Where any portion of the assets has been stated by the petitioner to be
situate within the jurisdiction of a District Judge in another State, the District
Judge issuing the same shall cause a copy of the citation to be sent to such
other District Judge, who shall publish the same in the same manner as if it were
a citation issued by himself, and shall certify such publication to the District
Judge who issued the citation.
CASE LAW
The uneven distribution of assets among children cannot be taken as suspicious

circumstances; S. Sundaresa Pai v. Sumangala T. Pai, MANU/SC/0750/2001 :
AIR 2002 SC 317: 2001 AIR SCW 4951: JT (2000) 10 SC
92: MANU/SC/0750/2001 : (2002) 1 SCC 630: 2001 (8) SCALE 309: 2001 (8)
Supreme 474.
284. Caveats against grant of probate or administration.-
(1) Caveats against the grant of probate or administration may be lodged with a
District Judge or a District Delegate.
(2) Immediately on any caveat being lodged with any District Delegate, he shall
send copy thereof to the District Judge.
(3) Immediately on a caveat being entered with the District Judge, a copy
thereof shall be given to the District Delegate, if any, within whose jurisdiction it
is alleged the deceased had fixed place of abode at the time of his death, and to
any other Judge or District Delegate to whom it may appear to the District judge
expedient to transmit the same.
(4) Form of caveat.-The caveat shall be made as nearly as circumstances admit

in the form set forth in Schedule V.
285. After entry of caveat, no proceeding taken on petition until after notice to

caveator.-
No proceeding shall be taken on a petition for probate or letters of

administration after a caveat against the grant thereof has been entered with
the Judge or District Delegate to whom the application has been made or notice
has been given of its entry with some other Delegate, until after such notice to
the person by whom the same has been entered as the Court may think
reasonable.
286. District Delegate when not to grant probate or administration.-
A District Delegate shall not grant probate or letters of administration in any

case in which there is contention as to the grant, or in which it otherwise
appears to him that probate or letters of administration ought not to be granted
in his Court.
Explanation.-"Contention" means the appearance of any one in person, or

by his recognised agent, or by a pleader duly appointed to act on his
behalf, to oppose the proceeding.
287. Power to transmit statement to District Judge in doubtful cases where no

contention.-
In every case in which there is no contention, but it appears to the District

Delegate doubtful whether the probate or letters of administration should or
should not be granted, or when any question arises in relation to the grant, or
application for the grant, of any probate or letters of administration, the District
Delegate may, if he thinks proper, transmit a statement of the matter in
question to the District Judge, who may direct the District Delegate to proceed in
the matter of the application, according to such instructions as to the Judge may
seem necessary, or may forbid any further proceeding by the District Delegate in
relation to the matter of such application, leaving the party applying for the
grant in question to make application to the judge.
288. Procedure where there is contention, or District Delegate thinks probate

or letters of administration should be refused in his Court.-
In every case in which there is contention, or the District Delegate is of opinion

that the probate or letters of administration should be refused in his Court, the
petition, with any documents which may have been filed therewith, shall be
returned to the person by whom the application was made, in order that the
same may be presented to the District Judge, unless the District Delegate thinks
it necessary, for the purpose of justice, to impound the same, which he is
hereby authorised to do; and, in that case, the same shall be sent by him to the
District Judge.
289. Grant of probate to be under seal of Court.-
When it appears to the District Judge or District Delegate that probate of a Will
should be granted, he shall grant the same under the seal of his Court in the
form set forth in Schedule VI.
290. Grant of letters of administration to be under seal of Court.-
When it appears to the District Judge or District Delegate that letters of

administration to the estate of a person deceased, with or without a copy of the
Will annexed, should be granted, he shall grant the same under the seal of his
Court in the form set forth in Schedule VII.
291. Administration bond.--
(1) Every person to whom any grant of letters of administration, other than a
grant under section 241, is committed, shall give a bond to the District Judge
with one or more surety or sureties, engaging for the due collection, getting in,
and administering the estate of the deceased, which bond shall be in such form
as the Judge may, by general or special order, direct.
(2) When the deceased was Hindu, Mohammedan, Buddhist, Sikh or Jain or an
exempted person-
(a) the exception made by sub-section (1) in respect of a grant under

section 241 shall not operate;
(b) the District Judge may demand a like bond from any person to whom
probate is granted.
292. Assignment of administration-bond.-
The Court may, on application made by petitioner and on being satisfied that the
engagement of any such bond has not been kept, and upon such terms as to
security, or providing that the money received be paid into Court, or otherwise,
as the Court may think fit, assign the same to some person, his executors or
administrators, who shall thereupon be entitled to sue on the said bond in his or
their own name or names as if the same had been originally given to him or
them instead of to the Judge of the Court, and shall be entitled to recover
thereon, as trustees for all persons interested, the full amount recoverable in
respect of any breach thereof.
293. Time for grant of probate and administration.-
No probate of a Will shall be granted until after the expiration of seven clear
days, and no letters of administration shall be granted until after the expiration
of fourteen clear days from the day of the testator or intestate's death.
294. Filing of original Wills of which probate or administration with Will

annexed granted.-
(1) Every District Judge, or District Delegate, shall file and preserve all original
Wills, of which probate or letters of administration with the Will annexed may be
granted by him, among the records of his Court, until some public registry for
Wills is established.
(2) The State Government shall make regulations for the preservation and
inspection of the Wills so filed.
295. Procedure in contentious cases.-
In any case before the District Judge in which there is contention, the
proceedings shall take, as nearly as may be, the form of a regular suit,
according to the provisions of the Code of Civil Procedure, 1908 (5 of 1908), in
which the petitioner for probate or letters of administration, as the case may be,
shall be the plaintiff, and the person who has appeared to oppose the grant shall
be the defendant.
296. Surrender of revoked probate or letters of administration.-
(1) When a grant of probate or letters of administration is revoked or annulled

under this Act, the person to whom the grant was made shall forthwith deliver
up the probate or letters to the Court which made the grant.
(2) If such person wilfully and without reasonable cause omits so to deliver up
the probate or letters, he shall be punishable with fine which may extend to one
thousand rupees, or with imprisonment for a term which may extend to three
months, or with both.
297. Payment to executor or administrator before probate or administration

revoked.-
When a grant of probate or letters of administration is revoked, all payments

bonafide made to any executor or administrator under such grant before the
revocation thereof shall, notwithstanding such revocation, be a legal discharge
to the person making the same; and the executor or administrator who has
acted under any such revoked grant may retain and reimburse himself in respect
of any payments made by him which the person to whom probate or letters of
administration may afterwards be granted might have lawfully made.
298. Power to refuse letters of administration.-
Notwithstanding anything hereinbefore contained, it shall, where the deceased

was a Mohammedan, Buddhist or exempted person, or a Hindu, Sikh or Jain to
whom section 57 does not apply, be in the discretion of the court to make an
order refusing, for reasons to be recorded by it in writing, to grant any
application for letters of administration made under this Act.
299. Appeals from orders of District Judge.-
Every order made by a District Judge by virtue of the powers hereby conferred
upon him shall be subject to appeal to the High Court in accordance with the
provisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to
appeals.
300. Concurrent jurisdiction of High Court.-
(1) The High Court shall have concurrent jurisdiction with the District Judge in
the exercise of all the powers hereby conferred upon the District Judge.
(2) Except in cases to which section 57 applies, no High Court, in exercise of the
concurrent jurisdiction hereby conferred over any local area beyond the limits of
the towns of Calcutta, Madras and Bombay shall, where the deceased is a Hindu,
Mohammedan, Buddhist, Sikh or Jain or an exempted person, receive
applications for probate or letters of administration until the State Government
has, by a notification in the Official Gazette, authorised it so to do.
301. Removal of executor or administrator and provision for successor.-
The High Court may, on application made to it, suspend, remove or discharge
any private executor or administrator and provide for the succession of another
person to the office of any such executor or administrator who may cease to
hold office, and the vesting in such successor of any property belonging to the
estate.
302. Directions to executor or administrator.-
Where probate or letters of administration in respect of any estate has or have

been granted under this Act, the High Court may, on application made to it, give
to the executor or administrator any general or special directions in regard to
the estate or in regard to the administration thereof.
Of executors of their own wrong
303. Executor of his own wrong.-
A person who intermeddles with the estate of the deceased, or does any other
act which belongs to the office of executor, while there is no rightful executor or
administrator in existence, thereby makes himself an executor of his own wrong.
Exceptions.-(1) Intermeddling with the goods of the deceased for the

purpose of preserving them or providing for his funeral or for the
immediate necessities of his family or property, does not make an
executor of his own wrong.
(2) Dealing in the ordinary course of business with goods of the deceased
received from another does not make an executor of his own wrong.
Illustrations
(i) A uses or gives away or sells some of the goods of the deceased, or takes
them to satisfy his own debt or legacy or receives payment of the debts of the
deceased. He is an executor of his own wrong.
(ii) A, having been appointed agent by the deceased in his life-time to collect his
debts and sell his goods, continues to do so after he has become aware of his
death. He is an executor of his own wrong in repect of acts done after he has
become aware of the death of the deceased.
(iii) A sues as executor of the deceased, not being such. He is an executor of his
own wrong.
304. Liability of executor of his own wrong.-
When a person has so acted as to become an executor of his own wrong, he is

answerable to the rightful executor or administrator, or to any creditor or
legatee of the deceased, to the extent of the assets which may have come to his
hands after deducting payments made to the rightful executor or administrator,
and payments made in due course of administration.
Of the Powers of an Executor or Administrator
305. In respect of causes of action surviving deceased and debts due at death.-
An executor or administrator has the same power to sue in respect of all causes
of action that survive the deceased, and may exercise the same power for the
recovery of debts as the deceased had when living.
306. Demands and rights of action of or against deceased survive to and

against executor or administrator.-
All demands whatsoever and all rights to prosecute or defend any action or
special proceeding existing in favour of or against a person at the time of his
decease, survive to and against his executors or administrators; except causes
of action for defamation, assault, as defined in the Indian Penal Code, 1860 (45
of 1860), or other personal injuries not causing the death of the party; and
except also cases where, after the death of the party, the relief sought could not
be enjoyed or granting it would be nugatory.
Illustrations
(i) A collision takes place on a railway in consequence of some neglect or default

of an official, and a passenger is severely hurt, but not so as to cause death. He
afterwards dies without having brought any action. The cause of action does not
survive.
(ii) A sues for divorce. A dies. The cause of action does not survive to his
representative.
307. Power of executor or administrator to dispose of property.-
(1) Subject to the provisions of sub-section (2), an executor or administrator

has power to dispose of the property of the deceased, vested in him under
section 211, either wholly or in part, in such manner as he may think fit.
Illustrations
(i) The deceased has made a specific bequest of part of his property. The
executor, not having assented to the bequest, sells the subject of it. The
sale is valid.
(ii) The executor in the exercise of his discretion mortgages a part of the
immovable estate of the deceased. The mortgage is valid.
(2) If the deceased was a Hindu, Mohammedan, Buddhist, Sikh or Jain or an

exempted person, the general power conferred by sub-section (1) shall be
subject to the following restrictions and conditions, namely:--
(i) The power of an executor to dispose of immovable property so vested

in him is subject to any restriction which may be imposed in this behalf
by the Will appointing him, unless probate has been granted to him and
the Court which granted the probate permits him by an order in writing,
notwithstanding the restriction, to dispose of any immovable property
specified in the order in a manner permitted by the order.
(ii) An administrator may not, without the previous permission of the

Court by which the letters of administration were granted,-
(a) mortgage, charge or transfer by sale, gift, exchange or

otherwise any immovable property for the time being vested in
him under section 211, or
(b) lease any such property for a term exceeding five years.
(iii) A disposal of property by an executor or administrator in

contravention of clause (i) or clause (ii), as the case may be, is voidable
at the instance of any other person interested in the property.
(3) Before any probate or letters of administration is or are granted in such a

case, there shall be endorsed thereon or annexed thereto a copy of sub-section
(1) and clauses (i) and (iii) of subsection (2) or of sub-section (1) and clauses
(ii) and (iii) of subsection (2), as the case may be.
(4) A probate or letters of administration shall not be rendered invalid by reason

of the endorsement or annexure required by subsection (3) not having been
made thereon or attached thereto, nor shall the absence of such an
endorsement or annexure authorise an executor or administrator to act
otherwise than in accordance with the provisions of this section.
308. General powers of administration.-
An executor or administrator may, in addition to, and not in derogation of any

other powers of expenditure lawfully exercisable by him, incur expenditure-
(a) on such acts as may be necessary for the proper care or management
of any property belonging to any estate administered by him; and
(b) with the sanction of the High Court, on such religious, charitable and
other objects, and on such improvements, as may be reasonable and
proper in the case of such property.
309. Commission or agency charges.-
An executor or administrator shall not be entitled to receive or retain any

commission or agency charges at a higher rate than that for the time being fixed
in respect of the Administrator-General by or under the Administrator-General's
Act, 1913 (3 of 1913).
310. Purchase by executor or administrator of deceased's property.-
If any executor or administrator purchases, either directly or indirectly, any part

of the property of the deceased, the sale is voidable at the instance of any other
person interested in the property sold.
311. Powers of several executors or administrators exercisable by one.-
When there are several executors or administrators, the powers of all may, in
the absence of any direction to the contrary, be exercised by any one of them
who has proved the Will or taken out administration.
Illustrations
(i) One of several executors has power to release a debt due to the deceased.
(ii) One has power to surrender a lease.
(iii) One has power to sell the property of the deceased whether movable or
immovable.
(iv) One has power to assent to a legacy.
(v) One has power to endorse a promissory note payable to the deceased.
(vi) The Will appoints A, B, C and D to be executors, and directs that two of
them shall be a quorum. No act can be done by a single executor.
312. Survival of powers on death of one of several executors or

administrators.-
Upon the death of one or more of several executors or administrators, in the

absence of any direction to the contrary in the Will or grant of letters of
administration, all the powers of the office become vested in the survivors or
survivor.
313. Powers of administrator of effects unadministered.-
The administrator of effects unadministered has, with respect to such effects,

the same powers as the original executor or administrator.
314. Powers of administrator during minority.-
An administrator during minority has all the powers of an ordinary administrator.
315. Powers of married executrix or administratrix.-
When a grant of probate or letters of administration has been made to a married

woman, she has all the powers of an ordinary executor or administrator.
Of the Duties of an Executor or Administrator
316. As to deceased's funeral.-
It is the duty of an executor to provide funds for the performance of the

necessary funeral ceremonies of the deceased in a manner suitable to his
condition, if he has left property sufficient for the purpose.
317. Inventory and account.-
(1) An executor or administrator shall, within six months from the grant of
probate or letters of administration, or within such further time as the Court
which granted the probate or letters may appoint, exhibit in that Court an
inventory containing a full and true estimate of all the property in possession,
and all the credits, and also all the debts owing by any person to which the
executor or administrator is entitled in that character; and shall in like manner,
within one year from the grant or within such further time as the said Court may
appoint, exhibit an account of the estate, showing the assets which have come
to his hands and the manner in which they have been applied or disposed of.
(2) The High Court may prescribe the form in which an inventory or account
under this section is to be exhibited.
(3) If an executor or administrator, on being required by the Court to exhibit an

inventory or account under this section, intentionally omits to comply with the
requisition, he shall be deemed to have committed an offence under section 176
of the Indian Penal Code, 1860 (45 of 1860).
(4) The exhibition of an intentionally false inventory or account under this

section shall be deemed to be an offence under section 193 of that Code.
318. Inventory to include property in any part of India in certain cases.-
In all cases where a grant has been made of probate or letters of administration
intended to have effect throughout India, the executor or administrator shall
include in the inventory of the effects of the deceased all his movable and
immovable property situate in India and the value of such property situate in
each State shall be separately stated in such inventory, and the probate or
letters of administration shall be chargeable with a fee corresponding to the
entire amount or value of the property affected thereby wheresoever situate
within India.
319. As to property of, and debts owing to, deceased.-
The executor or administrator shall collect, with reasonable diligence, the

property of the deceased and the debts that were due to him at the time of his
death.
320. Expenses to be paid before all debts.-
Funeral expenses to a reasonable amount, according to the degree and quality

of the deceased, and death-bed charges, including fees for medical attendance
and board and lodging for one month previous to his death, shall be paid before
all debts.
321. Expenses to be paid next after such expenses.-
The expenses of obtaining probate or letters of administration, including the

costs incurred for or in respect of any judicial proceedings that may be
necessary for administering the estate, shall be paid next after the funeral
expenses and death-bed charges.
322. Wages for certain services to be next paid, and then other debts.-
Wages due for services rendered to the deceased within three months next
preceding his death by any labourer, artisan or domestic servant shall next be
paid, and then the other debts of the deceased according to their respective
priorities (if any).
323. Save as aforesaid, all debts to be paid equally and rateably.-
Save as aforesaid, no creditor shall have a right of priority over another, but the
executor or administrator, shall pay all such debts as he knows of, including his
own, equally and rateably as far as the assets of the deceased will extend.
324. Application of movable property to payment of debts where domicile not

in India.-
(1) If the domicile of the deceased was not in India, the application of his
movable property to the payment of his debts is to be regulated by the law of
India.
(2) No creditor who has received payment of a part of his debt by virtue of sub-
section (1) shall be entitled to share in the proceeds of the immovable estate of
the deceased unless he brings such payment into account for the benefit of the
other creditors.
(3) This section shall not apply where the deceased was a Hindu, Mohammedan,
Buddhist, Sikh or Jaina or an exempted person.
Illustration
A dies, having his domicile in a country where instruments under seal have
priority over instruments not under seal leaving movable property to the value
of 5,000 rupees, and immovable property to the value of 10,000 rupees, debts
on instruments under seal to the amount of 10,000 rupees and debts on
instruments not under seal to the same amount. The creditors holding
instruments under seal receive half of their debts out of the proceeds of the
movable estate. The proceeds of the immovable estate are to be applied in
payment of the debts on instruments not under seal until one-half of such debts
has been discharged. This will leave 5,000 rupees which are to be distributed
rateably amongst all the creditors without distinction, in proportion to the
amount which may remain due to them.
325. Debts to be paid before legacies.-
Debts of every description must be paid before any legacy.
326. Executor or administrator not bound to pay legacies without indemnity.-
If the estate of the deceased is subject to any contingent liabilities, an executor

or administrator is not bound to pay any legacy without a sufficient indemnity to
meet the liabilities whenever they may become due.
327. Abatement of general legacies.-
If the assets, after payment of debts, necessary expenses and specific legacies,
are not sufficient to pay all the general legacies in full, the latter shall abate or
be diminished in equal proportions, and, in the absence of any direction to the
contrary in the Will, the executor has no right to pay one legatee in preference
to another, or to retain any money on account of a legacy to himself or to any
person for whom he is a trustee.
328. Non-abatement of specific legacy when assets sufficient to pay debts.-
Where there is a specific legacy, and the assets are sufficient for the payment of
debts and necessary expenses, the thing specified must be delivered to the
legatee without any abatement.
329. Right under demonstrative legacy when assets sufficient to pay debts and
necessary expenses.-
Where there is a demonstrative legacy, and the assets are sufficient for the
payment of debts and necessary expenses, the legatee has a preferential claim
for payment of his legacy out of the fund from which the legacy is directed to be
paid until such fund is exhausted and if, after the fund is exhausted, part of the
legacy still remains unpaid, he is entitled to rank for the remainder against the
general assets as for a legacy of the amount of such unpaid remainder.
330. Rateable abatement of specific legacies.-
If the assets are not sufficient to answer the debts and the specific legacies, an
abatement shall be made from the latter rateably in proportion to their
respective amounts.
Illustration
A has bequeathed to B a diamond ring valued at 500 rupees, and to C a horse,

valued at 1,000 rupees. It is found necessary to sell all the effects of the
testator; and his assets, after payment of debts, are only 1,000 rupees. Of the
sum rupees 333-5-4 are to be paid to B, and rupees 666-10-8 to C.
331. Legacies treated as general for purpose of abatement.-
For the purpose of abatement, a legacy for life, a sum appropriated by the Will
to produce an annuity, and the value of an annuity when no sum has been
appropriated to produce it, shall be treated as general legacies.
Of Assent to a Legacy by Executor or Administrator
332. Assent necessary to complete legatee's title.-
The assent of the executor or administrator is necessary to complete a legatee's

title to his legacy.
Illustrations
(i) A by his Will bequeaths to B his Government paper which is in deposit with
the Imperial Bank of India. The Bank has no authority to deliver the securities,
nor B a right to take possession of them, without the assent of the executor.
(ii) A by his Will has bequeathed to C his house in Calcutta in the tenancy of B. C
is not entitled to receive the rents without the assent of the executor or
administrator.
333. Effect of executor's assent to specific legacy.-
(1) The assent of the executor or administrator to a specific bequest shall be

sufficient to divest his interest as executor or administrator therein, and to
transfer the subject of the bequest of the legatee, unless the nature or the
circumstances of the property require that it shall be transferred in a particular
way.
(2) This assent may be verbal, and it may be either express or implied from the
conduct of the executor or administrator.
Illustrations
(i) A horse is bequeathed. The executor requests the legatee to dispose of it, or
a third party proposes to purchase the horse from the executor, and he directs
him to apply to the legatee. Assent to the legacy is implied.
(ii) The interest of a fund is directed by the Will to be applied for the
maintenance of the legatee during his minority. The executor commences so to
apply it. This is an assent to the whole of the bequest.
(iii) A bequest is made of a fund to A and after him to B. The executor pays the
interest of the fund to A. This is an implied assent to the bequest to B.
(iv) Executors die after paying all the debts of the testator, but before
satisfaction of specific legacies. Assent to the legacies may be presumed.
(v) A person to whom a specific article has been bequeathed takes possession of
it and retains it without any objection on the part of the executor. His assent
may be presumed.
334. Conditional assent.-
The assent of an executor or administrator to a legacy may be conditional and if

the condition is one which he has a right to enforce, and it is not performed,
there is no assent.
Illustrations
(i) A bequeaths to B his lands of Sultanpur, which at the date of the Will, and at
the death of A were subject to a mortgage for 10,000 rupees. The executor
assents to the bequest, on condition that B shall within a limited time pay the
amount due on the mortgage at the testator's death. The amount is not paid.
There is no assent.
(ii) The executor assents to a bequest on condition that the legatee shall pay
him a sum of money. The payment is not made. The assent is nevertheless
valid.
335. Assent of executor to his own legacy.-(1)
(1) When the executor or administrator is a legatee, his assent to his own legacy
is necessary to complete his title to it, in the same way as it is required when
the bequest is to another person, and his assent may, in like manner, be
expressed or implied.
(2) Assent shall be implied if in his manner of administering the property he

does any act which is referable to his character of legatee and is not referable to
his character of executor or administrator.
Illustration
An executor takes the rent of a house or the interest of Government securities

bequeathed to him, and applies it to his own use. This is assent.
336. Effect of executor's assent.-
The assent of the executor or administrator to a legacy gives effect to it from the
death of the testator.
Illustrations
(i) A legatee sells his legacy before it is assented to by the executor. The
executor's subsequent assent operates for the benefit of the purchaser and
completes his title to the legacy.
(ii) A bequeaths 1,000 rupees to B with interest from his death. The executor
does not assent to his legacy until the expiration of a year from A's death. B is
entitled to interest from the death of A.
337. Executor when to deliver legacies--
An executor or administrator is not bound to pay or deliver any legacy until the
expiration of one year from the testator's death.
Illustration
A by his Will directs his legacies to be paid within six months after his death. The
executor is not bound to pay them before the expiration of a year.
Of the Payment and Apportionment of Annuities
338. Commencement of annuity when no time fixed by Will.-
Where an annuity is given by a Will and no time is fixed for its commencement,
it shall commence from the testator's death, and the first payment shall be
made at the expiration of a year next after that event.
339. When annuity, to be paid quarterly or monthly, first falls due.-
Where there is a direction that the annuity shall be paid quarterly or monthly,
the first payment shall be due at the end of the first quarter, or first month, as
the case may be, after the testator's death; and shall, if the executor or
administrator thinks fit, be paid when due, but the executor or administrator
shall not be bound to pay it till the end of the year.
340. Dates of successive payments when first payment directed to be made

within a given time or on day certain: death of annuitant before date of
payment.-
(1) Where there is a direction that the first payment of an annuity shall be made
within one month or any other division of time from the death of the testator or
on a day certain, the successive payments are to be made on the anniversary of
the earliest day on which the Will authorises the first payment to be made.
(2) If the annuitant dies in the interval between the times of payment, an
apportioned share of the annuity shall be paid to his representative.
Of the Investment of Funds to provide for Legacies
341. Investment of sum bequeathed, where legacy, not specific given for life.-
Where a legacy, not being a specific legacy, is given for life, the sum
bequeathed shall at the end of the year be invested in such securities as the
High Court may by any general rule authorise or direct, and the proceeds
thereof shall be paid to the legatee as the same shall accrue due.
342. Investment of general legacy, to be paid at future time, disposal of

intermediate interest.-
(1) Where a general legacy is given to be paid at a future time, the executor or
administrator shall invest a sum sufficient to meet it in securites of the kind
(2) The intermediate interest shall form part of the residue of the testator's
estate.
343. Procedure when no fund charged with, or appropriated to annuity.-
Where an annuity is given and no fund is charged with its payment or

appropriated by the Will to answer it, a Government annuity of the specified
amount shall be purchased, or, if no such annuity can be obtained, then a sum
sufficient to produce the annuity shall be invested for that purpose in securities
of the kind mentioned in section 341.
344. Transfer to residuary legatee of contingent bequest.-
Where a bequest is contingent, the executor or administrator is not bound to

invest the amount of the legacy, but may transfer the whole residue of the
estate to the residuary legatee, if any, on his giving sufficient security for the
payment of the legacy, if it shall become due.
345. Investment of residue bequeathed for life, without direction to invest in

particular securities.-
(1) Where the testator has bequeathed the residue of his estate to a person for
life without any direction to invest it in any particular securities, so much thereof
as is not at the time of the testator's decease invested in securities of the kind
mentioned in section 341 shall be converted into money and invested in such
securities.
(2) This section shall not apply if the deceased was a Hindu, Mohammedan,
Buddhist, Sikh or Jain or an exempted person.
346. Investment of residue bequeathed for life, with direction to invest in

specified securities.-
Where the testator has bequeathed the residue of his estate to a person for life
with a direction that it shall be invested in certain specified securities, so much
of the estate as is not at the time of his death invested in securities of the
specified kind shall be converted into money and invested in such securities.
347. Time and manner of conversion and Investment.-
Such conversion and investment as are contemplated by sections 345 and 346
shall be made at such times and in such manner as the executor or
administrator thinks fit; and, until such conversion and investment are
completed, the person who would be for the time being entitled to the income of
the fund when so invested shall receive interest at the rate of 4 per cent. per
annum upon the market-value (to be computed as at the date of the testator's
death) of such part of the fund as has not been so invested:
Provided that the rate of interest prior to completion of investment shall

be six per cent. per annum when the testator was a Hindu,
Mohammedan, Buddhist, Sikh or Jain or an exempted person.
348. Procedure where minor entitled to immediate payment or possession of

bequest, and no direction to pay to person on his behalf.-
(1) Where, by the terms of a bequest, the legatee is entitled to the immediate
payment or possession of the money or thing bequeathed, but is a minor, and
there is no direction in the Will to pay it to any person on his behalf, the
executor or administrator shall pay or deliver the same into the Court of the
District Judge, by whom or by whose District Delegate the probate was, or
letters of administration with the Will annexed were, granted, to the account of
the legatee, unless the legatee is a ward of the Court of Wards.
(2) If the legatee is a ward of the Court of Wards, the legacy shall be paid to the
Court of Wards to his account.
(3) Such payment into the Court of the District Judge, or to the Court of Wards,
as the case may be, shall be a sufficient discharge for the money so paid.
(4) Money when paid in under this section shall be invested in the purchase of
Government securities, which, with the interest thereon, shall be transferred or
paid to the person entitled thereto, or otherwise applied for his benefit, as the
Judge or the Court of Wards, as the case may be, may direct
Of the Produce and Interest of Legacies
349. Legatee's title to produce of specific legacy.-
The legatee of a specific legacy is entitled to the clear produce thereof, if any,
from the testator's death.
Exception.-A specific bequest, contingent in its terms, does not comprise

the produce of the legacy between the death of the testator and the
vesting of the legacy. The clear produce of it forms part of the residue of
the testator's estate.
Illustrations
(i) A bequeaths his flock of sheep to B. Between the death of A and delivery by
his executor the sheep are shorn or some of the ewes produce lambs. The wool
and lambs are the property of B.
(ii) A bequeaths his Government securities to B, but postpones the delivery of

them till the death of C. The interest which falls due between the death of A and
the death of C belongs to B, and must, unless he is a minor, be paid to him as it
is received.
(iii) The testator bequeaths all his four per cent. Government promissory notes
to A when he shall complete the age of 18. A, if he completes that age, is
entitled to receive the notes, but the interest which accrues in respect of them
between the testator's death and A's completing 18, form part of the residue.
350. Residuary legatee's title to produce of residuary fund.-
The legatee under a general residuary bequest is entitled to the produce of the
residuary fund from the testator's death.
Exception.-A general residuary bequest contingent in its terms does not

comprise the income which may accrue upon the fund bequeathed
between the death of the testator and the vesting of the legacy. Such
income goes as undisposed of.
Illustrations
(i) The testator bequeaths the residue of his property to A, a minor, to be paid
to him when he shall complete the age of 18. The income from the testator's
death belongs to A.
(ii) The testator bequeaths the residue of his property to A when he shall
complete the age of 18. A, if he completes that age, is entitled to receive that
residue. The income which has accrued in respect of it since the testator's death
goes as undisposed of.
351. Interest when no time fixed for payment of general legacy.-
Where no time has been fixed for the payment of a general legacy, interest
begins to run from expiration of one year from the testator's death.
Exception.-(1) Where the legacy is bequeathed in satisfaction of a debt,

interest runs from the death of the testator.
(2) Where the testator was a parent or a more remote ancestor of the
legatee, or has put himself in the place of a parent of the legatee, the
legacy shall bear interest from the death of the testator.
(3) Where a sum is bequeathed to a minor with a direction to pay for his
maintenance out of it, interest is payable from the death of the testator.
352. Interest when time fixed.-
Where a time has been fixed for the payment of a general legacy, interest
begins to run from the time so fixed. The interest up to such time forms part of
the residue of the testator's estate.
Exception.-Where the testator was a parent or a more remote ancestor of

the legatee, or has put himself in the place of a parent of the legatee and
the legatee is a minor, the legacy shall bear interest from the death of
the testator, unless a specific sum is given by the Will for maintenance,
or unless the Will contains a direction to the contrary.
353. Rate of interest.-
The rate of interest shall be four per cent. per annum in all cases except when
the testator was a Hindu, Mohammedan, Buddhist, Sikh or Jain or an exempted
person, in which case it shall be six per cent. per annum.
354. No interest on arrears of annuity within first year after testator's death.-
No interest is payable on the arrears of an annuity within the first year from the
death of the testator, although a period earlier than the expiration of that year
may have been fixed by the Will for making the first payment of the annuity.
355. Interest on sum to be invested to produce annuity.-
Where a sum of money is directed to be invested to produce an annuity, interest

is payable on it from the death of the testator.
Of the Refunding of Legacies
356. Refund of legacy paid under Court's orders.-
When an executor or administrator has paid a legacy under the order of a Court,
he is entitled to call upon the legatee to refund in the event of the assets
proving insufficient to pay all the legacies.
357. No refund if paid voluntarily.-
When an executor or administrator has voluntarily paid a legacy, he cannot call

upon a legatee to refund in the event of the assets proving insufficient to pay all
the legacies.
358. Refund when legacy has become due on performance of condition within

further time allowed under section 137.-
When the time prescribed by the Will for the performance of a condition has
elapsed, without the condition having been performed, and the executor or
administrator has thereupon, without fraud, distributed the assets; in such case,
if further time has been allowed under section 137 for the performance of the
condition, and the condition has been performed accordingly, the legacy cannot
be claimed from the executor or administrator, but those to whom he has paid it
are liable to refund the amount.
359. When each legatee compellable to refund in proportion.-
When the executor or administrator has paid away the assets in legacies, and he
is afterwards obliged to discharge a debt of which he had no previous notice, he
is entitled to call upon each legatee to refund in proportion.
360. Distribution of assets.-
Where an executor or administrator has given such notices as the High Court
may, by any general rule, prescribe or, if no such rule has been made, as the
High Court would give in an administration-suit, for creditors and others to send
in to him their claims against the estate of the deceased, he shall, at the
expiration of the time therein named for sending in claims, be at liberty to
distribute the assets, or any part thereof in discharge of such lawful claims as he
knows of, and shall not be liable for the assets so distributed to any person of
whose claim he shall not have had notice at the time of such distribution:
Provided that nothing herein contained shall prejudice the right of any
creditor or claimant to follow the assets, or any part thereof, in the hands
of the persons who may have received the same respectively.
361. Creditor may call upon legatee to refund.-
A creditor who has not received payment of his debt may call upon a legatee
who has received payment of his legacy to refund, whether the assets of the
testator's estate were or were not sufficient at the time of his death to pay both
debts and legacies; and whether the payment of the legacy by the executor or
administrator was voluntary or not.
362. When legatee, not satisfied or compelled to refund under section 361,

cannot oblige one paid in full to refund.-
If the assets were sufficient to satisfy all the legacies at the time of the
testator's death, a legatee who has not received payment of his legacy, or who
has been compelled to refund under section 361, cannot oblige one who has
received payment in full to refund, whether the legacy were paid to him with or
without suit, although the assets have subsequently become deficient by the
wasting of the executor.
363. When unsatisfied legatee must first proceed against executor, if solvent.-
If the assets were not sufficient to satisfy all the legacies at the time of the
testator's death, a legatee who has not received payment of his legacy must,
before he can call on a satisfied legatee to refund, first proceed against the
executor or administrator if he is solvent; but if the executor or administrator is
insolvent or not liable to pay, the unsatisfied legatee can oblige each satisfied
legatee to refund in proportion.
364. Limit to refunding of one legatee to another.-
The refunding of one legatee to another shall not exceed the sum by which the
satisfied legacy ought to have been reduced if the estate had been properly
administered.
Illustration
A has bequeathed 240 rupees to B, 480 rupees to C, and 720 rupees to D. The
assets are only 1,200 rupees and, if properly administered, would give 200
rupees to B, 400 rupees to C and 600 rupees to D. C and D have been paid their
legacies in full, leaving nothing to B. B can oblige C to refund 80 rupees, and D
to refund 120 rupees.
365. Refunding to be without interest.-

The refunding shall in all cases be without interest.
366. Residue after usual payments to be paid to residuary legatee.-
The surplus or residue of the deceased's property, after payment of debts and
legacies, shall be paid to the residuary legatee when any has been appointed by
the Will.
367. Transfer of assets from India to executor or administrator in country of

domicile for distribution.-
Where a person not having his domicile in India has died leaving assets both in
India and in the country in which he had his domicile at the time of his death
and there has been a grant of probate or letters of administration in India with
respect to the assets there and a grant of administration in the country of
domicile with respect to the assets in that country, the executor or
administrator, as the case may be, in India, after having given such notices as
are mentioned in section 360, and after having discharged, at the expiration of
the time therein named, such lawful claims as he knows of, may, instead of
himself distributing any surplus or residue of the deceased's property to persons
residing out of India who are entitled thereto transfer, with the consent of the
executor or administrator, as the case may be, in the country of domicile, the
surplus or residue to him for distribution to those persons.
Of the Liability of an Executor or Administrator for Devastation
368. Liability of executor or administrator for devastation.-
When an executor or administrator misapplies the estate of the deceased or

subjects it to loss or damage, he is liable to make good the loss or damage so
occasioned.
Illustrations
(i) The executor pays out of the estate an unfounded claim. He is liable to make
good the loss.
(ii) The deceased had a valuable lease renewable by notice which the executor
neglects to give at the proper time. The executor is liable to make good the loss.
(iii) The deceased had a lease of less value than the rent payable for it, but
terminable on notice at a particular time. The executor neglects to give the
notice. He is liable to make good the loss.
369. Liability of executor or administrator for neglect to get any part of

property.-
When an executor or administrator occasions a loss to the estate by neglecting

to get in any part of the property of the deceased, he is liable to make good the
amount.
Illustrations
(i) The executor absolutely releases a debt due to the deceased from a solvent
person, or compounds with a debtor who is able to pay in full. The executor is
liable to make good the amount.
(ii) The executor neglects to sue for a debt till the debtor is able to plead that
the claim is barred by limitation and the debt is thereby lost to the estate. The
executor is liable to make good the amount.
CASE LAW
Miscellaneous
Proceedings for grant of probate cannot be satyed if suit for partition is pending;
Thakur Das Virmani v. Raj Minocha, 84 (2000) DLT 534.
Section 90 of Succession Act provides for increases, diminution or other change

in the description of the property between the execution of the Will and the
death of the testator; Lachhman Singh v. Raja Ram
Singh, MANU/SC/0218/1999 : (1999) 3 SCC 517.
All property movable and immovable of which is an owner can be disposed of by

him by Will except such as is legally nontransferable, such as occupancy
tenancy; Sangappa Kalyanappa Bangi v. Land Tribunal,
Jharkhand, MANU/SC/0603/1998 : AIR 1998 SC 3229: (1998) 7 SCC 294.
A property which has already been settled earlier under a settlement deed is no
longer bequeathable; Dagani Ramadas v. P. Daveed, MANU/SC/1227/1998 :
(1998) 8 SCC 465.
It may be added that taking of a probate or letters of administration is not

obligatory except when the Will is made or the property is situated in Bombay or
Chennai presidency towns or within the territories which were under the Lt.
Governor of Bengal at the time Succession Act was passed; Jagdish Chandra v.
Punjab National Bank, AIR 1998 Del 266.
Persons including two petitioners were mentioned as legal heirs. They filed
petition for grant of probate on the basis of registered Will. Notices were issued.
Copy of newspaper containing citation was on record. Reply was filed by way of
no-objection. Attesting witnesses proved the Will. Death certificate was proved.
Thus probate was granted; S. Waryam Singh v. State, 53 (1994) DLT 97.
Original Will was not filed despite several opportunities. No petition was filed for
grant of probate of Will. There was no direct interest in controversy. Hence,
application was held to be vexatious and calculated to cause delay; Pamela
Manmohan Singh v. State, 83 (2000) DLT 469.
A bequest shall not lapse due to the death of the legatee during the life-time of
testator when the legatee is a child or other lineal descendant of the testator.
Section 109 is an exception to sections 105 to 107 of the Indian Succession Act,
1925; Krishan Veni v. Rajagopal, 1998 (1) KLT 406.
In one case the testatrix (Poovamma) executed a Will and bequeathed the suit
property in favour of Muninanjappa (plaintiff) and her brother Guruswamy with a
condition that none of the legatees got any right to alienate any part of the suit
property. Thus, Guruswamy and after his death his wife Sevamma (widow)
became absolute owners by virtue of sections 13 and 14 of the Hindu Succession
Act. The question arose whether Sevamma could get absolute right under
section 14(1) of the Hindu Succession Act after the death of Guruswamy who
had a limited right. The answer to the said question was given in this case that
the deceased husband had a limited and restrictive right in the property under a
Will and his widow could not have absolute right i.e., she could not alienate it by
invoking section 14(1) of the Hindu Succession Act, 1956, and sale-deed
executed by her is null and void; Muninanjappa v. R. Manual, 2001 (3) Supreme
315: 2001 AIR SCW 1618: MANU/SC/0247/2001 : (2001) 5 SCC 363: 2001 (3)
SCALE 321.
Locus standi tiko present petition
In one case it was held that an attorney-holder from beneficiary under a Will has
the locus standi to present a petition for letters of administration; Greganj
(L.H.M.) v. General Public, MANU/HP/0012/1995 : AIR 1995 HP 96.
Proof of execution
Law requires that atleast one of the attesting witnesses must be examined and
the said witness would speak not only about testator's signature or affixation of
his mark to the Will but also for each of the witnesses that they had signed the
Will in the presence of the testator; Venkatachala Aianger v. B.N.
Thimmajagma, MANU/SC/0115/1958 : AIR 1959 SC 443.
Upon proof of due execution and testamentary capacity of the testator the court
in construing a Will is not entitled to examine the terms of the Will for deciding
whether the testator was justified in dis-inheriting his eldest son and his family;
Pramodh Kumari Bhatia v. Om Prakash Bhatia, MANU/SC/0537/1979 : AIR 1980
SC 446: 1980 UJ (SC) 51: (1980) 1 SCC 412:1980 (2) SCJ 30: 1980 (2) SCR
325.
In a case Objector himself attended the court on the date but his lawyer could
not attend due to his illness. Ex-parte order against the Objector was passed. It
was held that non-appearance of the Objector cannot be taken as intentional or
mala fide and will constitute a sufficient cause for recalling the ex-parte order;
Probha (V) v. State, AIR 1995 Del 128.
Sufficient interest
As to the test of what constitute a sufficient interest to entitle any opportunity to

be made a party, it has been held that any person has a sufficient interest who
can show that he is entitled to maintain a suit in respect of the property over
which the probate would have effect under the provisions of section 242 of the
Indian Succession Act, 1865; Kalika Singh v. Awdhesh Narayan
Singh, MANU/BH/0041/1983 : AIR 1983 Pat 149.
In the case of Joint executors of a Will, all the executors are equally responsible
to fulfil the wishes of the deceased; F.S.C. Amalnathan v. J.S. Victor Fiasco, AIR
1995 Karn 258.
A Will can be executed by a Hindu in relation to joint family property; Jamuna

Bai v. Surendra Kumar, MANU/MP/0068/1995 : AIR 1995 MP 274.
There is a presumption of genuineness in favour of holograph Will; Joyce

Primrose Prestor v. Vera Maria Vas, 1996 (2) CCC 228 SC.
A Will may contain several clauses and the latter clause may be inconsistent with
the earlier clauses. In such a situation the last intention of the testator is given
effect to and it is on this basis that the latter clause is held to prevail over the
earlier clauses. This is recognised in the well known maxim "cum duo inter se
pugnantia reperiuntur in tcstamento ultimum ratum est" which means that if in a
Will there are two inconsistent provisions, the latter shall prevail over the earlier
and this principle of law has been embodied in section 88 of the Act and
reiterated in a decision of the Supreme Court; Kaivelikkal Ambunhi dead by LRs
v. H. Ganesh Bhandary (HG), MANU/SC/0505/1995 : AIR 1995 SC 2491: (1995)
3 SCC (Supp) 541: 1995 AIR SCW 3667: 1995 (2) All CJ 982: 1995 (2) Ker LT
776: 1995 (2) Land LR 503.
Where a probate proceeding was converted into a suit and the sole executor
died during the pendency of the probate proceedings after such conversion into
suit, the residuary legatee, who was defendant in the suit made a prayer for
being transposed as plaintiff and proceed with the suit for grant of letters of
administration by making suitable amendment in the plaint. The trial court
rejected both the prayers against which the petitioner moved the High Court in
revision. The High Court allowed the application, holding that rules of procedure
are intended to be a hand-made to the administration of justice and the party
cannot be refused just remedy for infraction of any rules of procedure; Santi
Swarup Sarkar v. Pradip Kumar Sarkar, MANU/WB/0026/1997 : AIR 1997 Cal
197.
Keeping in view of provision of Limitation Act, probate proceedings are to be

filed within three years from conjectured withdrawal of permission i.e.,
commencement of period of three years from date of which legatee under Will
could be justifiably ascribed with knowledge that Will on which claim is founded
is likely to be disputed by other persons, especially natural heirs of testatrix;
Pamela Manmohan Singh v. State, 83 (2000) DLT 469.

21
MODEL DRAFTS
WILL
(General)
I,...................................................son/wife/daughter
of................................................................................................. aged
about .....years, resident of ....................................... do hereby declare my this Will
as my last WILL. I am making this Will having all disposing powers without any
compulsion or pressure from any source or person. Being of sound health, I am
conscious that no one is certain about the death which is inevitable for every one.
Hence, I do not want that after my death there should be any dispute, difference or
misunderstanding amongst/between my legal heir and any other person(s) interested or
uninterested to succeed to my properties both movable and immovable.
2. I have the following legal heir3s:
Name Age Relation
(i) Mrs. ......years wife
(ii) Mr. ........years son

(iii) Ms. ........years daughter
My mother is alive/died long back (and details of other legal heirs, as applicable).
My father is alive/died.
3. I own the following immovable and movable properties which are all my self acquired
built and/or acquired out of my own earnings and income without any assistance or any
ancestral assistance or contribution, as such, I have absolute power of disposal of the
same.
(i) House No................Location..........................................., which has been

purchased from............and ..........registered in my own names vide
conveyance deed vide Registration No.............. in Book No.........., Vol.
No............on pages........to.............in the Office of the Registrar
No....................
(ii) My daughter is married and lives with her husband independently.
(iii) My bank account jointly held with my wife/husband having joint saving bank
a/c No.......... and bank locker No. ...........................in the same bank.(as
applicable).
(iv) My fixed deposits and saving bank account in..................... where my

name appears first and jointly with my wife/ husband's name..............
(v) My investments in various shares, mutual funds, shares and any other
investment where my name appears first as on date and/or any other
investment in future where my name may appear first.
(vi) Cars No.....................&......................registered with Regional Transport

Authority (as applicable).
4. (a) I hereby bequeath all my movable and immovable properties together with the
undivided proportionate share in the impartible land (movable and immovable) to be
bought in future to my wife/husband for his/her life. No govt. authority shall insist on
"No Objection Certificate" from any other person/legal heir before mutating property in
my wife's/husband's name. My husband /wife (as applicable) will have full right without
any restriction and shall not require any 'no objection certificate' from my legal heirs.
(b) On the basis of this Will, my movable and immovable properties will be
transferred in the name of my wife/ husband..........with the concerned
authorities.
(c) By virtue of this Will my car Nos....................... will be transferred in the

name of my...........................by Regional Transport Office (as applicable).
(d) I give and bequeath all my furniture, fixtures, carpets, paintings and other
household goods, all other articles of personal domestic or household use etc.,
lying in flat/ house No.,......................(full address) to my
daughters/sons ..............................................or........................................
5. I give, devise and bequeath all my money and other property movable, whatsoever,
and not otherwise disposed of by this Will and any such movable and immovable
property purchased in future, shall be bequeathed in the manner described above i.e.,
to my wife/husband.
6. My wife/husband will have full and absolute right to sell, mortgage, rent out or
bequeath all my movable and immovable properties.
7. I give, devise and bequeath both my eyes on my death to any eye bank which will
use them for providing eye-sight to any person in need.
IN WITNESS WHEREOF, I, the said ............ have put my signature to each sheet of this
Will on the day and the year first above written, i.e.,
the.................of.................20........
Signature of TESTATOR/TESTATRIX
Signed by the above named testator/testatrix in our presence and at the same time,
each of us has in the presence of the testator/testatrix signed one's name hereafter as
attesting witness
Name Signature
Residential Address
Name Signature
Residential Address
Note: The shares are imaginary but be treated as only proformas since the facts,
families, desires will be different from each other.
WILL IN FAVOUR OF ONE PERSON
I, AB s/o..............................................r/o....................................aged
about...............................years, do hereby make and declare my last Will and
testament revoking all my earlier Wills, if any, at any time heretofore made, making
this Will effective after my death as per following manner:-
I appoint CD s/o........................................r/o.............................age
about...............................years hereinafter to be sole executor of this Will and the
trustee of my estate.
I direct that my said executor/trustee shall, at the earliest possible and convenient,
after obtaining probate, pay for discharge and satisfy all testamentary expenses and my
just debts and liabilities.
Further I also leave, bequeath and give a sum of Rs....................... to my wife XZ and
my golden watch and library books for enjoyment to my friend TS as per his desire.
Subject to what are hereinbefore stated, my said executor shall, after defraying the
costs, charges and expenses of administration and also subject to the above specific
legacies, I give, leave and bequeath the rest and residue of my estate, movable and
immovable including future assets, if any, acquired by me hereafter absolutely and for
ever upto and to the use of my son PB, his heirs, executors, administrators or assigns.
IN WITNESS WHEREOF I have hereunto set and subscribed my hand and signature on
this............................day of.......................20........
Signature of Testator
SIGNED by the said AB (or declared by the said AB) as his last Will and Testament in
the presence of us, present at the same time, who in his presence and in the presence
of each other, sign as witnesses hereto.
WITNESSES:
1. 2.
Name.................................. Name........................................
Address.............................. Address.................................
Signature............................. Signature...............................
WILL BEQUEATHING ABSOLUTE OF LAND, IN TRUST FOR RELIGIOUS USES
I,....................... s/o........................... r/o............................ aged about...............

years, do hereby revoke all testamentary dispositions heretofore made by my last Will
which I make on this.....................day of...................20.....
I appoint CD as the executor of my this Will and the trustee of my estate. My said
executor is entitled to obtain probate without being required to furnish any security. I
hereby put in black and white my wish and desire that agricultural land situated
at........................(fully described in schedule 'A') shall be utilised as a deity with the
name and style..........................to be constructed after my death by the said executor
and trustee and a temple also to be constructed by him for the purpose and he will
arrange funds for construction of the temple by the sale of plant and machinery and
other assets of the trade and business of mine being run under the name and style
of.................................... at................................
Further, I also hereby leave and bequeath my land situated at ............................more
particularly described in Schedule 'B', at my death and give power to my said executor
to sell and raise funds and CD shall, at the first instance pay for discharge and satisfy all
my funeral and testamentary expenses, death bed charges and other just debts and
liabilities and after payment thereof to utilise the remaining funds for construction and
establishment of above referred deity and temple and the balance funds after
construction and establishment of said deity and temple, shall be kept in fixed deposits
with the Government banks and shall, out of the interest of such FDRs, carry out the
worship or seva of the said temple. I also give power to said CD to act as shebait of the
said deity when consecrated and established and the said CD shall have powers to
nominate and/or appoint his successor or successors in office and in the absence
thereof his descendants shall act as trustees and shebaits. In case of any default on the
part of the said CD or even if he fails to perform his duties successfully, it shall be lawful
for my heirs and legal representatives to remove him or his successors, as the case may
be, from the office of the trustee and appoint another in his or their place and in the
event of failure on his part, a new trustee shall be appointed by the court of competent
jurisdiction.
IN WITNESS WHEREOF, I have hereunto set and subscribe my hand and signature on
this...............day of.................20.....
SIGNED by the Testator as his last Will and Testament in our presence all being present
at the same time. Thereafter at the request of Testator and in the presence of one
another we subscribe our respective names.
WITNESSES:
1. Name................................. 2. Name.....................................
Address.............................. Address.................................
CODICIL WITH BEQUEATH AUTHORIZING WIDOW TO ADOPT SON
I, AB s/o................................... r/o ..................... aged about .................years, do

hereby declare this to be a codicil of my last Will made on the............day
of................20.... and which I direct to be treated as part thereof.
WHEREAS I have adopted a son named PS on............................, (date to be

mentioned, i.e., after the date of Will already executed). Hence, I leave, give and
bequeath a sum of Rs.............in favour of my adopted son PS for his absolute use and
benefit out of my total estate already bequeathed through the aforesaid Will
dated ...................., in favour of my wife CD.
WHEREAS I hereby give my wife, CD, authority, power and liberty to adopt a suitable
boy as my son in the event of death of PS without leaving a widow or male issue AND to
adopt another boy on the death of such adopted son without leaving a widow or male
issue to adopt another boy successively.
Subject as aforesaid I confirm my said Will.
IN WITNESS WHEREOF I have hereto set and subscribed my hand and signature on
this................day of................20.....
SIGNED and/or declared by the above named Testator as his last Will in the presence of
us who in his presence have hereunto set our hands as witnesses.
WITNESSES:
1. 2.
Name.......................... Name...................................................
........ .............
Address....................... Address................................
........
Signature..................... Signature...............................
........
CODICIL MAKING NEW BEQUESTS DUETO DEATH OF A LEGATEE
I, AB s/o ................................... r/o ..................... aged about .................years, do

of................20....
WHEREAS one of my legatees named TR mentioned in my said Will has died

on ................... Hence, the legacy thereunder bequeathed unto and in his favour shall
after my death fail and become a part of my general estate which was never intended
by me. AND WHEREAS in such circumstances I wish and desire that the said legacy
shall go to PS, my another son.
Now by this codicil I do hereby give, leave and bequeath the same unto and in favour of
said PS:
Provided further that in case the said PS shall become predeceased of me (which may
God forbid) then and in such an event the same shall be deemed to have passed in
favour of TD, my daughter absolutely and for ever.
AND in all other respects I confirm my said Will.
this................day of................20.....
SIGNED and /or declared by the above named Testator as his last Will in the presence
of us who in his presence have hereunto set our hands as witnesses.
WITNESSES:
1. 2.
Name.................................. Name.....................................
Address.............................. Address.................................
CODICIL FOR APPOINTMENT OF NEW EXECUTORDUE TO DEATH OF EARLIER

EXECUTOR
I, AB s/o.................................r/o...............................aged about .........years, do

of................20....
WHEREAS in my said Will I had appointed PM s/o

........................r/o..........................aged about..............years to be the
executor/trustee of my estates.
AND WHEREAS the said PM having died on............................I have a desire to

substitute CD s/o..................... r/o....................... aged about................years as the
executor and trustee of my said Will.
NOW I revoke the appointment of PM through this codicil and do appoint CD

s/o...................r/o..................age about.............. years to be the executor/trustee of
my said Will in place of said PM deceased and I further declare that my said Will shall be
read/interpreted and construed and understood throughout as if the name of said CD
had been inserted in the said Will of mine and I do ratify and confirm my said Will in all
other respects.
this................day of................20....
SIGNED and/or declared by the above named Testator as his last Will in the presence of
us who in his presence have hereunto set our hands as witnesses.
WITNESSES:
1. 2.
Name.................................. Name.....................................
Address.............................. Address.................................
GENERAL WILL
I, AB s/o......................r/o........................aged about.............years, do hereby make

and declare my Will and testament, having sound mind and full understanding about the
contents of the Will as well as the effect of the contents of the said Will, making this Will
effective after my death as now being stepped in old age and on the basis of no time of
my last breath and to remove any kind of litigation or disturbance in between my legal
heirs after my death in effecting division of my estate on the following terms:-
I. Presently I have the estates consisting of:
1. House No.....................(description of the house be given).
2. Plot No.........................(description of the plot with measurement

and boundaries, etc. be given).
3. FDR No.......................in Bank...........................with maturity

date............for a sum of Rs................................
4. Household items (valuable items may be mentioned).
5. Jewellery in lockers (details be given).
6. Jewellery in house (details, if any, be given).
II. I have the following legal heirs:-
1. My wife, named........................aged.................years
2. My son, named.........................aged.................years
3. My daughter, named..............aged...........years (married)
4. My daughter, named...........aged.........years (unmarried)
III. I hereby give, leave and bequeath the following legacies to be effected out
of my estates as soon as possible after my death, viz;
1. House No.............in favour of my wife, named................and my son,
named......................in equal share.
2. Plot No................in favour of my wife, named..................and my

son, named......................in equal share.
3. Amount of FDRs alongwith interest in favour of my unmarried

daughter, named.........................
4. Household items in favour of my wife, named...................
5. Out of the jewellery in lockers, 50 grams gold ornaments in favour of

my married daughter, named........................and rest of the jewellery in
favour of my son and unmarried daughter in equal shares.
6. Jewellery in house in favour of my wife named.................
However, if any part of any estate is spent during my life-time, the same will be
deemed to be reduction in the respective estate and only the residue of that estate will
be accepted by the respective legatee.
I further appoint my wife, named........................hereinafter to be my sole executor of

this Will of my estates and she is directed, to obtain probate of the said Will, pay for
discharge and satisfy all testamentary expenses and my just debts and liabilities out of
her share, at the earliest possible and convenient, after my death.
I have divided my estates amongst my legal heirs on the following basis:-
1. My wife is house-lady and she is not able to earn her livelihood independently
in any manner. Hence, for her maintenance, livelihood and maintaining social
status she needs money.
2. My son is studying in engineering and he may prefer to start his own business
for which he needs money.
3. My married daughter is already MBBS and I have spent a huge amount on her
studies and marriage out of my own estates, hence she has, accordingly been
allocated only 50 grams gold ornaments.
4. My unmarried daughter has completed her degree in computer engineering

and now money is needed for her marriage for which I have made provision
accordingly.
Each and every legatee will be having absolute right and title to his/her respective share
of my estates for his absolute use and benefit for ever.
this................day of................20.....
SIGNED and/or declared by the above named Testator as his Will in the presence of us
who in his presence have hereunto set our hands as witnesses.
WITNESSES:
1. 2.
Name.................................. Name.....................................
Address.............................. Address................................
WILL TO CREATE TRUST FOR CHILDREN ANDCONTINUATION OF BUSINESS
I, AB s/o.................r/o...................aged about...............years, do hereby make and

declare my last Will and testament revoking all my earlier Wills, if any, at any time
heretofore made, making this Will effective after my death as per following terms:-
I appoint CD s/o..................................r/o...............................aged
about.............years and PM s/o...............r/o....................... aged
about.................... years, hereinafter called my Trustees (which expression where the
context permits, includes the survivors or survivors of them) as executors and trustees
of my said Will.
(Herein give the details of valuable movable items, like, refrigerator, television, washing
machine, air-conditioners besides cash).
Subject to what are hereinbefore stated, I hereby give, leave and bequeath the rest and
residue of my estate including movable and immovable unto the said trustees upon
trust for the use and benefit of my children and my said trustees shall divide the residue
of the property among my children after making payments payable when my youngest
child would attain majority, in equal shares.
My trustees would enjoy their absolute discretion to carry on and continue the business
as is being carried on by me, either alone or in partnership with any partner of their
choice who is deemed to be fit as per their discretion to carry on the business of the
Trust, for such period as they shall think proper.
I further declare that my trustees shall not be liable to my estate or any person
interested therein for losses, if any, incurred or suffered in carrying on my said business
except on account of any wilful and/or mala fide act, default, negligence on their part or
wrongful conversion or misappropriation of its funds and assets and not otherwise and
each of the trustees shall be fully indemnified out of my estates, as the case may be:
Provided that the said trustees shall maintain proper account of the estate and
preserve the same and get the same audited periodically.
In witness whereof the said AB testator has executed and signed these presents on
this...........day of....................20..........in the presence of OP and RS.
WITNESSES:
1. 2.
Name.................................. Name.....................................
Address.............................. Address.................................
PROFORMA SUGGESTED FOR A PETITION FOR OBTAINING OF PROBATE
IN THE HON'BLE COURT OF DISTRICT JUDGE,
...............................................(place of court)
In the matter of.
Petition for grant of probate under section 276 of
the Indian Succession Act
....................................s/o Late Shri...................................................

r/o..........................
....Petitioner
Respectfully showeth:
The petitioner begs to submit as under:
1. That the petitioner is the only son-in-law of the late Shri...................

s/o Shri................................., who used to reside permanently
at................................................................................(here give his
full address).
2. That the said late Shri .................................. made a Will annexed

hereto as his last Will and testament in respect of his properties
described in the Schedule 'A' annexed herewith.
3. That the said late Shri...................................has since died

on ........................while residing at his above stated address. Copy of
death certificate issued by the ................................. (name the
authority issuing the death certificate) is attached herewith.
4. That the properties detailed in the Schedule 'A' attached herewith in

respect of which the said late Shri................................ has made a Will
dated........................situate within the jurisdiction of this Hon'ble court.
5. That the said late Shri..................................as per his last Will

dated............................. as referred to above has appointed the
petitioner as the sole executor under the said Will.
6. That the market value of the properties mentioned in Schedule 'A'

attached with the Will which have been left by the deceased
Shri.............................which on the basis of his last Will
dated..............come in the hands of the petitioner works out to be
Rs.....................(full particulars and detailed valuation thereof are
indicated in the Schedule 'A').
7. That out of the value of Rs............................. in respect of properties

mentioned in Schedule 'A', the petitioner first of all has to discharge
certain liabilities as shown in the Schedule 'B' and after discharging such
liabilities/debts the approximate value of properties of the deceased
would come to Rs.........................
8. That as per up to date knowledge of the petitioner, no application so

far has been made in any court of law for grant of probate or letter of
administration regarding Will dated ........................or the properties left
by deceased Shri.......................
9. That there is no legal impediment for grant of probate on the basis of

contents of this application of the petitioner.
10. That the following are the near relatives of the deceased
Shri....................................
(a) Smt...................w/o...........................r/o.................................
(b) Shri.....................s/o...........................r/o...............................
In view of the above narrated facts and circumstances, the petitioner

most humbly and respectfully prays that probate be granted in his favour
on the basis of the Will dated...................of the deceased
Shri........................
Petitioner
..................
(Name and Address)
VERIFICATION
Verified on this ............ day of ....................... 20..... that I, ....................the above

named petitioner do hereby solemnly verify that the contents of the statement made in
the above paras are true and correct to the best of my knowledge, belief and enquiries
made and informations received and believed to be true and correct.
Petitioner
WITNESSES:
I,...........................s/o...............................r/o.............................hereby confirm
that I being witness to the Will dated................made by Shri.........................enclosed
with this application, declare that the deceased Shri................................has put his
signature on the said Will in the presence of mine and one Shri.....................(name the
other witness, if any) and at that time the deceased Shri ........................ was having
full knowledge and understanding about the contents of the Will after reading the same
himself and after having understood the effect of his said Will and the said deceased
also admitted before me the correctness of the contents of the said Will and it was his
last Will and testament.
Signature of witness
......................
(Name of witness with full address)
Encl.:
Schedules 'A' and 'B'
An affidavit of the petitioner
PROFORMA SUGGESTED FOR OBTAININGLETTER OF ADMINISTRATION
IN THE HON'BLE COURT OF DISTRICT JUDGE
.............................(place of court)
In the matter of:
Application for grant of Letter of Administration under section 278 of the

Indian Succession Act
.............................s/o Late Shri.....................................................

r/o...................................
....Petitioner
Respectfully showeth:
The petitioner begs to submit as under:
1. That Shri.................................... s/o Shri.................................

r/o...............................................................................................di
ed on......................leaving behind him his properties as detailed in the
Schedule 'A' annexed.
2. That the properties of the deceased Shri..............................as

detailed in Schedule 'A' annexed situate within the jurisdiction of this
Hon'ble court.
3. That the following are the near relatives of the deceased

Shri.....................................
(a)
Smt......................w/o..........................r/o.............................
(b)
Smt......................d/o...........................r/o.............................
(b)
Shri......................s/o............................r/o............................
4. That the market value of the properties mentioned in Schedule 'A'

attached herewith which have been left by the deceased to come in the
hands of the petitioner works out to be Rs.............................(full
particulars and detailed valuation thereof are indicated in the Schedule
'A').
5. That out of the value of Rs...................in respect of properties

mentioned in Schedule 'A', the petitioner will have to discharge certain
liabilities as shown in the Schedule 'B' and after paying all such
liabilities/debts of the deceased Shri..........................., the approximate
value of the properties of the deceased would come to Rs.......................
6. That the petitioner being the only son of the deceased

Shri.................. is making this application for grant of letter of
administration in order to administer the estate left by the deceased.
7. That as per upto date knowledge of the petitioner, no other application

so far has been made in any court of law for grant of letter of
administration regarding the properties left by the deceased
Shri..............as detailed in Schedule 'A'.
8. That there is no legal impediment for grant of letter of administration
in favour of the applicant/petitioner in the eyes of law.
In view of the above narrated facts and circumstances, the petitioner

most humbly prays that letter of administration be granted in his favour
enabling him to administer the estate of the deceased
Shri............................
Petitioner
VERIFICATION
Verified on this ............ day of ....................... 20..... that I, ....................the above

named petitioner do hereby solemnly verify that the contents of all the paras of the
above petition are true and correct to the best of my knowledge, belief and enquiries
made and informations received and believed to be true and correct.
Petitioner
Encl.:
Schedules A' and 'B'
An affidavit of the petitioner
SIMPLE WILL APPOINTING AN EXECUTOR
I, A.B...............................................son of....................................resident
of..................................aged about...................years do hereby make and declare
this as my last WILL and TESTAMENT whereby I bequeath and leave and give
to.............(my wife/son/daughler/ daughter-in-law/grand son/ grand daughter) all my
properties either movable or immovable which I may be possessed of or entitled to at
the time of my death.
AND I hereby appoint her (or him) the said..........sole executrix (or executor) of my
Will.
IN WITNESS whereof I the said A.B. have hereto signed at...........................this

the.............................day of..........20........
(Signature of A.B.)
SIGNED by the said A.B. (or declared by the said A.B.) as his last Will and Testament in
the presence of us, present at the same time, who in his presence and in the presence
of each other, sign as witnesses hereto.
WITNESSES:
1. 2.
Name.................................. Name.....................................
Address.............................. Address.................................
COMPREHENSIVE FORM OF WILL
I...................................................son/daughter/wife of................................
r/o............................. hereby revoke all testamentary dispositions heretofore made by
my last Will which I make this.........................................day of.............20.........
I appoint......................................of......................and...................
of...........and...........................of............................hereinafter called my Trustees
(which expression, where the context permits, includes the survivor or survivors of
them), as executors and Trustees of my Will.
I bequeath to my wife.................................................(name) absolutely free of duty

all the furniture and jewellery and articles of household for personal use and other
articles and effects of every kind which at my death shall be in or about my dwelling
house at.........................................(place), except money or securities for money, I
also bequeath to her free of duty the sum of Rupees..........................to be paid to her
immediately after my death and in priority to all other legacies and maintenance
allowances or annuities.
I devise my dwelling house in which I am now residing known

as............................................together with lands, gardens, outbuildings and
appurtenances thereto belonging or usually held or enjoyed therewith to my
son.......................................(name).
I bequeath free of duty to..........................and.........................the sum of

Rupees.........................................each, and if any of the said legatees dies in my life-
time leaving issue or issues at my death then in any such case I bequeath the legacy
which the person so dying would have taken, if he or she would have survived me, unto
my Trustees for his or her child or children who shall attain the age of 18 years, or
being a daughter shall marry before attaining that age, and if more than one in equal
shares, and if no child of the legatee dying as aforesaid shall attain a vested interest in
the said legacy then the same shall fall into and form part of my residuary estate.
I give free of duty the piece of land measuring.............................. situated

at.....................................and bounded as
follows:............................................................, and the sum of
Rupees......................................unto the Trustees upon trust that the Trustees shall
build thereon a Dharamshala at a cost not exceeding Rs..................................... for
temporary use by travellers and others according to the rules and regulations from time
to time to be framed by the said trustees, and shall invest the balance of the said
money in any investments authorized by law for the investment of the trust money with
power to vary the investments from time to time and shall out of the income arising
from such investments keep the said Dharamshala in proper repairs and at the
discretion of the Trustees, insured against fire and shall apply the surplus, if any, of the
said income in distributing free food to the poor travellers, staying in the said
Dharamshala.
I bequeath free of duty to.....................an annual maintenance of Rs.................for his

life, to commence from my death, to be paid by equal half-yearly payments, the first
payment to be made at the end of six calendar months after my death. I direct my
Trustees to set apart as soon as convenient may be, and invest in their names in any of
the investments in which my residuary estate is authorized to be invested, with power
to vary the investments, whatever, sum shall be sufficient, at the time of the
investment, to pay the said maintenance allowance, and to pay the same accordingly
with power to resort to the capital of the invested fund whenever the income shall be
insufficient to pay the said maintenance allowance, and until such sum shall be changed
with the said maintenance allowance, but after appropriation of my residuary estate
shall be discharged from the same.
I bequeath Rupees.............................to my Trustees upon trust in equal shares for all

or any of my children living at my death who attain the age of 18 years, or being
female, marry under that age, and for all or any of the issues living at my death who
attain the age of 18 years or being females marry under that age or any children of
mine who die in my life-time leaving issue or issues at my death, such issue or issues to
take through all decrees according to their stocks in equal shares the share or shares
which their parents would have taken if living at my death and having then attained a
vested interest, and so that no issue shall take whose parent is living at my death and
so capable of taking.
My Trustees may at any time and from time to time pay or apply any part or parts not
exceeding together one-half of the presumptive or vested share of any child or other
issue of mine under the trust hereinbefore declare for the advancement or benefit of
such issue as my Trustees think proper.
Or (during the minority and in the case of any female during so much of her minority as
she shall remain unmarried, or any child or other issue of mine who would for the time
being be entitled to a share under the foregoing trust, my Trustees may for the whole
or any part of the income of the expectant or presumptive share of such infant apply for
his or her maintenance, education or benefit with liberty to pay the same to the
guardian or guardians of such infant for the purpose aforesaid without being liable to
see to the application thereof; and shall accumulate the residue, if any, of the said
income by investing the same and the resulting income thereof shall be added to the
principal share from which same shall have proceeded; but my Trustees may at any
time resort to the accumulations of any preceding year or years and apply the same for
and towards the maintenance, education or benefit of any person for the time being
presumptively entitled thereto).
With respect to the business of a merchant now carried on by me at.......................

(place) or any other business in which I may be engaged at the time of my death, my
Trustees may continue the same for so long as they may think fit or discontinue the
same at any time and wind up the affairs thereof, with power for my Trustees, if and so
long they shall continue the business, to employ therein the whole or any part of the
capital which shall be employed therein at the time of my death, and also such further
part, if any, of my estate as they shall think expedient, with power to employ
managers, agents and clerks and also to admit any person or persons as partner or
partners with them in the business and generally to act in the conduct of the said
business as they shall, in their absolute discretion, think fit without being answerable for
any loss arising thereby.
During the continuance of such business by my Trustees the net profits arising
therefrom shall be applied in like manner as income arising from investments
representing the proceeds of sale of such business would be applicable.
I devise and bequeath all my estate, including movable and immovable property and
monies and securities for money not hereby or by any codicil otherwise specifically
disposed of, and which I can dispose of by Will in any manner I think proper, either as
beneficially entitled thereto or under any general power, unto my Trustees upon trust
that my Trustees shall call in and convert into money such part of my estate as does
not consist of money, with power to postpone such calling in and conversion for such
period as my Trustees, without being liable to account, may think proper; my Trustees
shall, out of money to arise from the calling in and conversion of my said estate and out
of my ready money pay my funeral and testamentary expenses and debts, except
mortgage debts, if any, specifically charged on property which debts are to be paid
primarily out of the property charged therewith, and shall also pay or provide for the
specific legacy or legacies and maintenance allowance hereby or by any codicil
bequeathed by me and shall invest the residue of the said money in their names in or
upon any of the investments hereby authorized, with power for my Trustees at
discretion to change such investments for others of like nature; and shall pay the
income of such investments to the Trustees or the Committee of management
of.................................School at....................(place) to be applied for the purposes
of the said School.
Or subject to the payment of my funeral and testamentary expenses, debts and the
specific legacies and the maintenance allowances I devise and bequeath my estate, not
hereby otherwise specifically disposed of, which I can dispose of in any manner I think
proper, either as beneficially entitled thereto or under any general power, unto my
Trustees to hand over the same to..................and...................absolutely and in equal
shares.
IN WITNESS WHEREOF I have hereunto set my hand the day and year above-written.
SIGNED and (or) declared by the above-named as his last Will in the presence of us
WITNESSES:
1. 2.
Name.................................. Name.....................................
Address.............................. Address.................................
WILL IN FAVOUR OF CHILDREN
This is the last Will of mine,...........................son of.................. resident

of.................. which I make this...............day of............... 20..............
I hereby revoke all the testamentary disposition herertofore made by me and declare
this to be my last Will.
I appoint.......................................as the executor and trustee of this Will.
I devise and bequeath all the property which I may be possessed of or which I may
have power to dispose of at the time of my death to my children both sons and
daughters in equal shares and direct that the share of each child shall be handed over
to him or to her on his or her attaining the age of majority (or on attaining the age of
21 years) or earlier in the case of a daughter on her marriage: Provided that if any of
my children shall hereafter die during my life-time then his or her share shall be handed
over to his or her child or equally to his or her children as the case may be on such child
attaining the age of majority or in the case of any such child being a female on her
marriage whichever event shall happen earlier.
I direct my said executor and trustee immediately on my death to stand possessed of all
my property of every description and to realize and recover the rents and profits thereof
and after paying my funeral and the administration expenses of my estate and
providing for or paying my debts, if any, shall hold the balance of such property rents
and profits upon trust for my children or their children as aforesaid to be handed over to
them respectively on their attaining the age of majority (or the age of 21 years) or on
marriage if earlier according to the conditions and dispositions hereinafter made by me.
I further direct that till the share of each child shall be handed over to him or to her as
hereinbefore provided my executor and trustee shall in the meantime pay to my such
child or to his or her lawful guardian or at his discretion shall himself apply the whole or
part of the income of such share for the maintenance, education and advancement of
such child as he shall deem necessary or proper and also from time to time the corpus
of such share or part thereof as the urgency of the occasion shall require.
I declare that my executor or trustee aforesaid may and hereby authorised to dispose of
by sale, mortgage or otherwise the whole or part of my estate as he shall in his sole
judgment and discretion consider in the interest of or beneficial to my estate and the
legatee or legatees thereof, and to apply and to invest the proceeds in such securities
and investments (authorised by law for the investment of trust funds) as he shall
consider proper and to alter such investments as he shall from time to time consider
advisable and that without being accountable for any losses arising therefrom unless
such losses be attributable to culpable neglect or fraudulent conduct of the said
executor and trustee.
IN WITNESS WHEREOF I have hereunto set my hand the day and year above-written.
SIGNED and (or declared) by the above-named as his last Will in the presence of us
WITNESSES:
1. Name.................................. Name........................
Address.............................. Address.........................
Signature....................... Signature.................
WILL IN FAVOR OF SON CANCELING EARLIER WILL WHICH WAS MADE IN

FAVOR OF WIFEOF THE TESTATOR
This is my last Will dated...........................executed at................... and cancels my

Will dated..............................made in favour of my wife who has died
on............................and all other previous Wills or codicils, if any, made heretofore.
WHEREAS I had made a Will on.............................bequeathing all my assets in favour

of my wife Smt.....................................
AND WHEREAS she has died leaving our only son named Master..........................who
is now of................age and is minor.
NOW, THEREFORE, I declare that I bequeath all my properties and assets, belonging to
me or which may belong to me hereinafter and remain undisposed of during my life-
time unto Master ...........................my aforesaid son. In case I should die before he
becomes major, I appoint Mr.......................son of....................resident
of..............................as an executor of this Will, who shall collect and realise all my
outstandings and take further steps in this regard in a prudent manner and administer
the estate assets left by me for the benefit of my son the aforesaid legatee after
defraying all expenses of such administrator and the said executor shall be entitled
during such administration to charge Rupees.......... per mensem remuneration for his
service till my minor son attains majority, whereupon the said executor shall hand over
all the estate then in being unto the said executor. During the minority of my son, the
executor shall act as guardian, of my said son and shall look after his education and
training and welfare so as to enable my son to settle down in his life. In case my son
attains majority during my life-time and survives me, the provision relating to
appointment of executor shall not take effect and my son shall be entitled to receive
and appropriate as an owner all and every part of the estate/assets left by me.
IN WITNESS WHEREOF, I have signed this Will in the presence of

Shri.............................son of...............................resident
of...............................and Shri...............................son of........................ resident
of..................................., attested this Will is witnesses thereof in my presence.
The above-named testator has signed the said Will in our presence and we have
attested the same in his presence.
WITNESSES:
]. 2.
Name.................................. Name.....................................
Address........................ Address.................................
Signature..................... Signature...............................
WILL IN FAVOUR OF WIDOW ANDCHILDREN
This is the last Will of mine..........................made this.........day

of................20........I hereby revoke all testamentary dispositions heretofore made by
me (or I hereby revoke the Will made by me on.............................. and the codicil to
the same made by me on.........................). I appoint.........................as the executor
of my Will and.........................as the guardian after my death of persons and
properties of my minor children and of the minor legatees hereunder.
I devise and bequeath all my property movable or immovable unto my

wife................................and my children............................ and.........................in
equal shares with direction to my executor to hand over one-fourth share to my wife as
soon after my death as feasible and as to the one-fourth share of each of my child who
may have attained the age of 21 years to hand over the same to such child as soon
after my death as may be feasible and as to the one-fourth share of each of my child
who may not have attained the age of 21 years to hand over the same to the guardian
of such child or to retain the same till such child shall have attained the age of 21 years
and to hand over the same when such child shall attain the age of 21 years provided
that in the meantime and till such child shall attain the age of 21 years my executor
shall pay to the guardian of such child on the 1st day of January, April, July and October
each year respectively a sum of Rupees............. (or such sum as shall be equal to 80%
of the net income of the quarterly income of the share of such child) for expenses of the
maintenance and education of such child and that without being liable to see to or
responsible for the proper application of the same by the guardian for the purposes
aforesaid. And also, that my said executor may at any time and from time to time at his
discretion pay to such guardian such larger and further sum or sums of money out of
the share aforesaid of the said minor as he shall in his absolute judgment deem
necessary for the benefit or advancement of the minor concerned. I direct that
immediately on my death my executor shall call in, collect and take possession of the
whole of my estate over which I shall at the time of my death have power of disposal by
Will or otherwise and shall in the first instance pay therefrom my funeral and
administration expenses and the debts if any due from me and then divide the balance
of my estate between my wife and children aforesaid as hereinbefore devised and
directed. I hereby authorise my executor to sell and dispose of in any manner that he
shall deem fit the whole or part of my estate aforesaid and to invest or reinvest the
same in such securities as he shall consider beneficial to my estate, provided that he
shall not sell or dispose of any immovable property forming part of my estate without
the consent in writing of my said wife and of such of my children aforesaid who shall
have attained the age of 18 years respectively.
I declare that if my said wife or any of my said children shall have predeceased me then
the share hereby bequeathed to such deceased shall form part of my estate and shall
be divided accordingly among the surviving legatees hereunder or then as to the share
of my said wife the same shall form part of my estate and shall be divided accordingly
among my remaining legatees hereunder and as to the share or shares of any deceased
child or children the same shall be deemed to have been hereby bequeathed to the
widow if any of such deceased child and to child or children of such deceased child in
equal shares and in the absence of such widow, child or children of such deceased child
it shall form part of my estate and shall be divided accordingly to the legatees
hereunder.
IN WITNESS WHEREOF I have hereunto set my hand the day and year above written.
WITNESSES:
1. Name.................................. 2. Name.................................
Address.............................. Address................................
WILL IN FAVOR OF WIFE FOR LIFE AND THEREAFTER OF CHILDREN
This is the last Will of mine,................................son of................... resident

of.......................................................
I hereby revoke all testamentary dispositions heretofore made by me and declare this to
be my last Will.
I appoint..............................as the executor of this Will.
I devise and bequeath all my property of every description, immovable or movable

including cash and securities to my wife.....................for her life and thereafter, and in
case of her death during my life-time, in my son................................ and my
daughter.............................absolutely and in equal shares.
I direct that immediately on my death my executor shall stand possessed of my estate

and shall realize the rents, income and profits thereof and after payment of my funeral
expenses and the expenses of the administration of my estate shall in the first instance
pay and satisfy therefrom my debts, if any, and thereafter shall hand over and deliver
the balance thereof, that is of the corpus and the rents income and profits, to my said
wife and in case of her having died in the meantime equally to my said son and my said
daughter.
I also direct that in the meantime and till the said executor shall hand over the balance
aforesaid of my estate to the legatee or legatees hereunder the said executor shall pay
each calendar month after my death to my said wife a sum of Rupees.................. and
in case of her death to each of my said son and my said daughter the monthly sum of
Rupees...................................for her or their use and maintenance respectively and
such further amount or amounts as the said executor shall at his absolute discretion
consider proper or necessary for her or their benefit or advancement and shall debit the
same to the interest or share in my estate of the legatee or legatees concerned.
I further direct that if my said son or my said daughter be dead on the date of the death
of my said wife if she shall predecease me then and in each of such cases his or her
share in my estate as bequeathed to him or to her hereunder respectively shall devolve
on his or her child and in case of more than one child on his or her children equally and
if there be no such child or children then the same shall devolve on the survivor of my
said son and my said daughter as the case may be.
who in his presence have hereunto set: our hands as witness.
WITNESSES:
1. 2.
Name.................................. Name.....................................
Address........................... Address.................................
Signature............................. Signature..............................
WILL IN FAVOR OF WIFE AND CHILDREN
I....................................son of..............................................resident
of..................................... do hereby revoke all testamentary dispositions heretofore
made by me and declare this to be my last Will which I make this.............day
of..................20....
I devise and bequeath unto my wife.................................absolutely my house

called....................................situated in.................................. and bounded as
follows:-
East..............................................
West..............................................
North.............................................
South.............................................
free from incumbrances and from probate duty and administration expenses which shall
be paid out of the residue of my estate. I devise and bequeath the residue of my estate
of whatever description to my sons.................... and.................. and to my
daughter..................and to my grandson........................and my grand
daughter.............................in the following shares, i.e., to each of my sons aforesaid
one-fourth, to my daughter aforesaid one-fourth equally, i.e., one-eighth each.
I appoint..........................and................................as the executors of my Will and

the guardians of my minor children and of such of my minor grand children who upon
my demise shall be entitled to a share in my estate hereunder.
I direct that immediately upon my death my said executors shall stand possessed of the
whole of my estate of every description which I may die possessed of or over which I
might then have power of disposal and shall hand over the house described above to
my wife..........................for her sole and absolute use and enjoyment and for ever and
after paying my funeral and administration expenses including those relating to the
house aforesaid out of the residue of my estate shall divide and hand over the balance
of such estate to such of my children and grandchildren aforesaid who shall have
attained the age of 21 years or in the case of females who shall have married before
attaining the age according to the shares mentioned above and as the shares hereby
devised and bequeathed respectively of those of my children and grandchildren
aforesaid as shall not have then attained the age of 21 years or being females shall not
have been married the executors aforesaid shall receive and realize the income and
profits thereof and use and apply the whole or portion of the same and the whole or
portion of the corpus of such shares respectively to the maintenance, education and
advancement of the child or grandchild concerned as the said executors in their
absolute discretion shall deem fit and shall hand over the balance thereof to the child or
grandchild concerned on his or her attaining the age of 21 years or in the case of a
female earlier on her marriage.
I further declare as to the residue of my estate that my executors shall have the power
to alienate and transfer the whole or part of such estate if they shall consider, and of
this they shall be absolute judges, that such alienation or transfer is necessary for the
proper administration of such estate or for a proper division thereof hereunder or as to
the shares respectively of those of the children or grandchildren who might not have
attained the age of 21 years or who being females might not have married earlier if
such alienation or transfer be deemed by the executors to be for the benefit of such
children or grand children respectively.
I further declare that if any of my children or grandchildren aforesaid shall predecease

me then the share of such child or grandchild as the case may be shall be deemed to
have been hereby bequeathed and devised to the child or equally to the children of such
deceased child or grandchild and shall be subject to all the conditions, dispositions and
provisions hereinbefore contained as if such child or children of the deceased had been
mentioned herein among the original legatees of the residue of my estate which shall
then be administered accordingly.
WITNESSES:
1. 2.
Name.................................. Name.....................................
Address.............................. Address.............................
Signature.............................. Signature.............................
WILL FOR BEQUEATHING PROPERTIES TOCREATE A TRUST
This is the last Will and Testament of mine, I.................................. son

of.........................................resident of.................................................. do
hereby appoint and constitute Shri........................................son
of.......................................... resident of......................................... as executor of
my Will and direct that he shall soon after my demise, consolidate and make list of my
assets which I possess or will be in possession at the time of my death and give effect
to my desires, as explained hereinafter in this Will.
All my properties either movable or immovable as well as assets possessed of or

entitled to by me after my death are devised in a Trust which will be known
as....................................... My aforesaid executor shall be the managing trustee and
will be entitled to appoint another one or more trustees to manage the trust according
to my desires hereinafter contained. The trustees will be empowered to make and
decide the aims and objects of the trust subject to following conditions:-
1. To manage effectively the trust properties for which the trustees shall make
adequate provision each year from the incomes of the trust properties.
2. In order to enable my trustees to satisfactorily carry out the trust as created,

I authorise and empower them to do all acts, deeds and things which are
reasonable, necessary and proper for the realisation, protection or benefit of the
trust properties. Should, however, the trustees choose to exercise their
discretion to sell or lease any properties in the interest of and for enhancement
and achievement of the objects of the trust, they shall have the power to do so.
Reinvestment of trust-funds or assets shall only be on such securities as may be
guaranteed by the State or Central Government or in fixed deposit with any
scheduled Bank.
3. The trustees shall also be empowered to open and operate, if necessary, an

account or accounts in such Bank or Banks as may be approved by the trustees
and to authorise any one or more of them to operate the same.
4. Should any vacancy arise in the body of trustees by reason of the death,
resignation or any legal incapacity of any one or more of them, a new trustee or
new trustees, shall be appointed in his or their place by the surviving or
continuing trustee or trustees for the time being, and any such appointment so
made shall be made by a majority of votes.
5. The trustees shall preferably choose from amongst themselves or on from

outside an administrator or executive trustee and may confer upon him such
powers as they think fit. Such administrator/executive trustee shall be entitled
an honorarium as fixed by the trustees.
IN WITNESS WHEREOF, I in the presence of the said.............................have

hereunder set my hand this the............ day of.............20.......and I have also set my
hand to each page of this Will.
ATTESTATION
SIGNED by..................................... as the last Will of the said testator in his presence
and by his direction in the presence of us, present at the same time, who at the request
of the said testator in his presence, and in the presence of each other, have subscribed
our names as witnesses.
WITNESSES:
1. 2.
Name.................................. Name.....................................
Address.............................. Address.................................
CODICIL
I...........................son of.........................resident of......................declare this to be

a first codicil which I make this............... day of.....................20.......to my Will which
is dated.............................
WHEREAS by my Will I have directed that the Trust fund thereby defined shall be held
in trust for all or any of my children or child who attains the age of 18 years or if
females marry under that age, and if more than one in equal shares; AND WHEREAS
since the execution of my Will I have paid the sum of Rupees.......................... to or
for the benefit of.................................. (name) my son.
Now I declare that the said sum of Rupees.............................so paid to or for the
benefit of my son shall be taken by him in part satisfaction of his share in the Trust fund
under my Will and accordingly such Trust fund shall be divided between the children
among whom the same is directed to be divided by my Will, in such manner that the
share of the said.........................(son) shall be less in amount than the share of the
other children by the sum of Rupees...................................
Subject as aforesaid I confirm my said Will.
IN WITNESS WHEREOF I have hereunto set my hand the day and year first above
written.
SIGNED and declared by the above-named........................as the first codicil to his last
Will in the presence of us, who in his presence have hereunto set our hands as
witnesses.
WITNESSES:
1. 2.
Name.................................. Name.....................................
Address.............................. Address.................................
CODICIL MODIFYING THE WILL
I...........................son of..........................resident of.......................... declare this

to be a second codicil which I make this....................... day of....................20........to
my Will which is dated.........................I revoke the appointment contained in my Will
whereby I appointed..............................to be an executor and trustee thereof and
appoint.......................to be an executor and trustee of my Will in the place of the
said..............to act jointly with the other executors and trustees named in my Will.
I revoke the legacy of Rupees..............................bequeathed by my Will

to..............................
I bequeath Rupees.......................................to...............................in addition to the

other legacies bequeathed by my Will.
Subject as aforesaid I confirm my Will except so far as it is revoked or varied by my

first codicil, and I confirm that codicil.
IN WITNESS WHEREOF I have hereunto set my hand the day and year first above-
written.
SIGNED and declared by the above-named........................as the second codicil to his

last Will in the presence of us, who in his presence have hereunto set our hands as
witnesses.
WITNESSES:
1. Name.................................. 2. Name..................................
Address.............................. Address...................................
Signature........................... Signature................................
CODICIL APPOINTING ANOTHEREXECUTOR OF THE WILL

By this first codicil to my Will dated............................. (and registered as document
No............................. in the office of the Registrar/Sub-Registrar
at..........................on the.......................day of.................................if so
registered), I........................................son of........................ resident
of................................. hereby state and declare as follows:-
Since I have appointed Shri.................................as an executor of my Will and that

he is no longer alive.
NOW THEREFORE, I hereby revoke the appointment of the said...........................as

the executor of my said..............................Will and I hereby appoint
Shri...............................son of..........................to be an executor of my said Will in
his place and I declare that my said Will and all the provisions contained therein shall be
construed and take effect in all respects as if the name of the said .........................had
been originally mentioned there in lieu of the name of the said...................as executor
and in all other respects I confirm my said Will.
IN WITNESS WHEREOF I have hereto signed this codicil, this ...................day

of......................20......
SIGNED and declared by the above named........................as the second codicil to his
last Will in the presence of us, who in his presence have hereunto set our hands as
witnesses.
WITNESSES:
1. 2.
Name.................................. Name.....................................
Address.............................. Address.................................
SECOND CODICIL REVIVING EARLIER WILL WHICH HASBEEN REVOKED BY AN

EARLIER CODICIL
This is my second codicil to the Will of mine A.B., son of............................resident

of.................................... which bears the date..........................day
of........................20..........
WHEREAS by a codicil, duly executed and attested bearing the date................day

of.....................and WHEREAS, I had revoked and cancelled my aforesaid Will by a
codicil dated......................
NOW THEREFORE, I hereby annul such revocation and declare that the said Will,
dated........................is valid, revived and subsisting.
IN WITNESS WHEREOF I the said A.B. have hereunto set my hand

this..........................day of.............. 20.........
Signature of A.B.
SIGNED and declared by the above-named.....................as the first codicil to his last
Will in the presence of us, who in his presence have hereunto set our hands as
witnesses.
WITNESSES:
1. 2.
Name.................................. Name.....................................
Address.............................. Address.................................
OR
This is a second codicil to the Will executed by me...................... son

of................................resident of............................which bears the
date.............................
WHEREAS I had made and executed a Will on...................(date) and had thereafter
executed a codicil thereto, dated................... whereby I had partially altered the
dispositions of my property contained in the said Will.
NOW by this second codicil I hereby revoke the said codicil dated................and I
hereby declare my said Will dated............... valid, revived and subsisting.
IN WITNESS WHEREOF I....................have hereunto set my hand

this................................day of..........................20.....
who in his presence have hereunto set our hands as witness.
WITNESSES:
1. 2.
Name.................................. Name.....................................
Address.............................. Address............................
Signature............................. Signature................................

All About Will

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Will is a legal declaration of the intention of a testator with respect to his

There are two essential characteristics of a Will:-

(ii) It must be revocable by the testator at any time.

© Universal law Publishing Co.

WHAT IS THE NEED OF A WILL

Secondly, a Will is absolutely personal document. More than anything, it is an

© Universal law Publishing Co.

3.1 Privileged and Unprivileged Wills

3.2 Conditional or Contingent Wills

3.1 Privileged and Unprivileged Wills

Wills executed according to the provisions of section 63 of the Indian Succession

No obliteration, interlineation or other alteration made in any unprivileged Will

A privileged Will or codicil may be revoked by the testator by an unprivileged

This rule as to revocation of a Will by marriage, does not, however, apply to

3.2 Conditional or Contingent Wills

A Joint Will is a testamentary instrument whereby two or more persons agree to

A Will executed by two or more testators as a single document duly executed by

If a document is deliberately executed with all due formalities purporting to be a

Such Wills are written entirely in the handwriting of the testator.

© Universal law Publishing Co.

TERMS COMMONLY USED FOR MAKING WILLS

4.1 Abatement (of legacies)

4.2 Ademption (of legacies)

4.3 Absence of Will (Effect of)

4.4 Advocate's Failure to Return the Will

4.10 Consent of Party Making Will

4.11 Death of Maker and Effect on Lagatees

4.15 Insolvency of the Testator

4.1 Abatement (of legacies)

4.3 Absence of Will (Effect of)

In the absence of a Will the element of unfair disposition of property can be

4.4 Advocate's Failure to Return the Will

If the circumstances of the case demand that if an error is found or discovered

(i) not be a minor, and

(ii) be of sound mind.

Explanations 1 to 4 of the section state that a married woman, a deaf or dumb

A written statement which supplements or modifies an existing Will. It must be

4.10 Consent of Party Making Will

4.11 Death of Maker and Effect on Legatees

The procurement of Will is not necessarily dependent on validity. Hence, a

They are also capable of being legatees or devices. According to Naturalisation

4.15 Insolvency of the Testator

A Will which is valid even though it is not in writing, or if in writing, is executed

A certificate issued by the court on the application of the executor appointed by

The concluding part of a Will is known as the testimonium. It generally begins

A Will of personal property. A Will of land is not called a testament.

A person who holds or manages property for the benefit of others.

© Universal law Publishing Co.

WHAT CAN BE BEQUEATHED IN A WILL

5.3 Extent of the Right to Bequeath

The following properties generally form the subject-matter of a Will:-

(iv) Books including Manuscripts,

(xi) Furniture including paintings, linen, utensils, etc.,

(xiv) Income including dividends and bonus shares,

(xv) Investments in stocks, shares, debentures and deposits other than

(xvi) Jewellery including unamounted diamonds,

(xvii) Lands and tenements,

(xviii) Money, i.e., cash and bank balances,

(xix) Interest in partnership including declared but undrawn profits and