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Report No. 110

XII. Residuary Legatee

16.81. Section 102.-

One of the more usual types of legacies is a residuary legacy. In brief, it is a legacy whereunder everything that is not otherwise disposed of is given to the residuary legatee. What amounts to a residuary legacy is a matter of great practical importance. How a residuary legatee may be constituted by a will is provided for in section 102. Such a legatee will be constituted by any words that show an intention on the part of the testator that the person designated shall take the surplus residue of the property. The basic test is one of the intention, and no particular words are necessary. The reported cases on the section have been gone through, and disclose no need for amending the section.

16.82. Section 103.-

The rights of a "residuary legatee" (an expression already defined in section 102) are dealt with in section 103. 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 by testamentary disposition which is capable of taking effect. This section corresponds to an English statutory provision1 on the subject.

The case where the residue lapses is dealt with later.2

1. Section 25, Wills Act, 1837 (Eng).

2. Section 108.

16.83. Property not known to the testator.-

It appears from the case law that there is some obscurity on the question whether, by virtue of section 103, property whose existence was not known to the testator passes under a residuary bequest. The wide language of the section justifies an affirmative answer to this query. In fact, such an answer has been given in, a Calcutta case1. But in later decision2-3, it was held that the wider rule should not be applied in construing the wills of Hindu testators,

1. Fanindra v. Administrator-General, (1905) 6 CWN 321.

2. Subodh Chandra v. Bnubalik, 1933 ILR 60 Cal 1406.

3. Kzmthalarnmal v. Suryaprakasaroya, ILR 33 Mad 1906: 29 Mad LJ 682.

16.84. Context as disclosing different contention.-

In view of this conflict of decisions, we have considered the question whether an amendment by way of clarification is needed, in section 103 in regard to property not known to the testator.

In dealing with this question one has to bear in mind certain rules of construction. As is provided1 by section 83, general words in a will may be understood in a restrictive sense, where the will discloses such an intention. This is illustrated by an English case also,2 on which section (ii) is based. The provisions of the Indian Succession Act relating to the construction of wills-sections 74 to 90, and particularly section 83-would be material in answering the question, "What passes under a residuary bequest?".

1. Section 83, Illustration (ii).

2. Cook v. Oakley, I.P. Williams 302.

16.85. No change suggested in section 103.-

This position, it seems to us cannot be remedied by any specific statutory provision. The decision in each case will depend on the facts. No attempt will, therefore, be made to suggest any amendment of section 103 on the point under discussion (i.e. on the question how far property whose existence is not known to the testator, passes under a residuary bequest).



The Indian Succession Act, 1925 Back




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