Report No. 110
VII. Quantum of Interest
16.32. Section 95.-
Under section 95, 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. With this provision, section 8 of the Transfer of Property Act, 1882, may be compared. Previously, there used to be scope for controversy as to whether a particular bequest to a Hindu female was intended to give her an absolute estate, or whether there was to be read into the bequest a limitation of a life interest or the like. But this controversy could not survive after it was laid down by the privy Council that there was no need to read any such limitation in a will. This interpretation has been re-affirmed by the Supreme Court.1
Kania, J. in a Bombay case,2 made an exhaustive survey of the decided cases on the subject upto 1943. Section 14 of the Hindu Succession Act, 1956, now provides as under as regards Hindus:-
"14. Property of a female Hindi to be her absolute property: (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation: In this sub-section 'property' includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."
1. Ram Gopal v. Nand Lal, AIR 1951 SC 139.
2. Bai Bhuri Bai D. Gurmukhrai v. Advocate-General, AIR 1943 Born 377: 45 Born LR 669
16.33. Provisions in the Hindu Succession Act.-
What section 95 of the Succession Act and section 8 of the Transfer of Property Act lay down is in substance, also enacted in section 14 of the Hindu Succession Act.1 If a "restricted interest" was intended for a legatee in general (section 95, Succession Act) or if a "restricted estate" is intended for a female Hindu (section 14, Hindu Succession Act), it must "so appear from the will (section 95, Succession Act) or the terms of the will must "prescribe a restricted estate" (section 14, Hindu Succession Act). Notwithstanding the verbal differences in the various provisions, it may be presumed that there is no intention to lay down substantially different rules.
1. Para. 16.32, supra.
16.34. No change in section 95.-
In this position, section 95 needs no change. 16.35. Section 96.-This takes us to section 96, quoted below:
"96. 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 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."
No amendment is needed in the section. It re-emphasises the principle (section 90) that the will speaks as from the death of the testator.