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Report No. 110

III. Mistake, Misdescriptions and Omissions-External Reality

16.8. Section 78-erroneous particulars. One of the great problems of the construction of documents is that of applying its provisions to external reality. The problem mainly arises where there is disharmony between the terms of the document and the external reality. In such cases, if the intention of the author of the document can be gathered, then defects in the expression of that intention are permitted by the law to be rectified.

16.9. Section 76-misnomer or misdescription.-

Erroneous particulars in the description of the subject of bequest do not, therefore, matter in themselves. Since the policy of the law is to give effect to the substance of the matter, it permits the court to disregard errors, omissions and misdescriptions in a will.

An error in the name or description is dealt with by section 76, in these terms:

"76 (1) Where the words used in a will to designate or describe to legatee or a class of legatees sufficiently show what is meant, an error in the name of 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".

The section needs no change.

16.10. Section 77-Omission of material words in a will.-

Section 77 concerns the omission of material words in a will-that is to say, words material to the full expression of the will. The section provides that the context may supply words so omitted. The section is rather widely expressed. It does not, however, apply where, in regard to material particulars, there is a blank in the will because, in such a case, the bequest would be void for uncertainty.1

The section needs no chance.

1. Section 81, Illustrations (ii) and (iii).

16.11. Section 78-Misdescription when to be regarded.-

Section 78 provides that 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. This is on the principle (already explained)1 that where there is disharmony between the text of a document and the external reality and the intention of the author of the document can be gathered with some reasonable certainty, the disharmony can be rectified, so as to give effect to the intention rather than to the fault in the description.

1. See para. 16.8, supra.

16.12. Section 79-description applicable in all respects.-

While, as stated above, section 78 permits a rejection of parts of the description where some parts do not apply, there are limits to such a rejection. Section 79 in this regard, provides as follows:-

"79. 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."

The section does not seem to need any change.

16.13. Section 80-latent ambiguity.-

Under section 80, extrinsic evidence for the construction of will is admissible in cases of latent1 ambiguity. The section reads as under:

"80. Where the words of a will are unambiguous, but it is found by extrinsic evidence that they admit of applications, one only of which can have been intended by the testator, extrinsic evidence may be taken to show which of these applications was intended."

The principle here is that if circumstances external to a will create problems, then it is legitimate to seek a solution to those problems in the external circumstances also.

The section needs no change.

1. Misprinted as 'patent' in the marginal note to sec. 80.

16.14. Section 81-Patent ambiguity.-

In contrast with the above provision, the Act disallows extrinsic evidence in case of patent ambiguity or deficiency. This is made clear by section 81, quoted below:

"81. Where there is an ambiguity or deficiency on the face of a will no extrinsic evidence as to the intentions of the testator shall be admitted."

The section needs no change.

16.15. Section 82-Entire instrument to be looked into.-

The elementary rule that the meaning of a clause is to be collected from the entire will is found in these terms in section 82.

"82. 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"

No change appears to be needed in the section.



The Indian Succession Act, 1925 Back




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