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Report No. 110

XIII. Time of Vesting of Legacies

16.86. Section 104.-

Having disposed of rules concerning the property over which a will operates, the legislature now turns to the question of time of vesting of legacies. Section 104 deals with the time of vesting of legacy in cases when there is no postponement of payment or possession. The case where possession or payment is postponed, is dealt with later1. Section 104 provides that if a legacy is given in general terms, without providing for the specific 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 (the legatee) dies without having it, it shall pass to his representatives.

1. Section 119.

16.87. Section applicable to all properties.-

The underlying principle is that the law favours the vesting of property. Although section 104 uses the words "to be paid"-words which are not appropriate for denoting movable property-, there is no doubt that the section is to be read as applicable to devises of immovable property, as well as to bequests of movable property1. In this position we have no change to recommend in this section.

1. Stokes Succession Act, p. 73, cited by M.N. Basu, Succession Act, (1957), p. 329.

16.88. Section 105-Lapse of legacy.-

This takes us to section 105. It provides as follows:-

"105. (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.

(a) In order to entitle the representative of the legatee to receive the legacy, it must be proved that he survived the testator.


(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 lifetime 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 the before he completes his eighteenth year, to B. A completes eighteenth year and then dies in the lifetime 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 shipwreck. There is no evidence to shows, which dies first. The legacy lapses."1

1. This is the situation of commorientis. See para. 16.91, infra.

16.89. Illustrations to section 105 analysed.-

The six illustrations to the section may now be analysed. Illustration (i) takes a simple case of lapse of bequest. Illustration (ii) is also a case of lapse, and rightly assumes that a bequest to "A and his children" is not to be treated as a separate gift to the children of A, but merely connotes' the quality of A's interest. Illustrations (iii) and (iv) are cases where a different intention appears from the will, so that the thing bequeathed does not go as residue. They also illustrate the operation of the rule in subsection.

Illustration (v) illustrates the first sub-section of section 105, namely, that if the legatee does not survive the testator, the legacy cannot take effect. The alternative bequest to B does not take effect in this case, because the gift to B is conditional on A's death before completing his eighteenth year-a condition not fulfilled on the facts in this case, as put in the illustration.

Illustration (vi) to the section relates to the very interesting situation described in juristic writings as "commorientis."1

1. For detailed discussion of illustration (vi), see para. 16.91, infra.

16.90. Exceptions to the rule in section 105.-

Section 105 states the rule as to lapse of legacy in general terms, but there are certain other provisions also in the Act, constituting exceptions to this rule, or qualifying or explaining its operation. For example, according to section 96, if an alternative bequest is provided for in the event of the legatee pre-deceasing the testator, the person or class of persons named in the second branch of the alternative shall take the legacy.

Illustration (iv) to section 105 also provides that in the case of legacy to a legatee for life with remainder to another legatee, the legacy would not lapse, if the tenant for life dies before the testator. The legacy then goes to the other legatee. Section 106 lays down that if a legacy is given to two persons jointly, and one of them dies before the testator, the other legatee takes the whole. Then, under section 109, in the absence of a contrary intention in the will, a bequest to a child or other lineal descendant of the testator does not lapse, if the child or other lineal descendant dies before the testator.

Section 110 provides that where the bequest is to a trustee for the benefit of another and the trustee dies before the testator, the bequest does not lapse. Lastly, under section 116, where a bequest is made to a class of persons, the thing bequeathed shall go only to such of them as are alive at the testator's death. These provisions are all in the nature of qualifications of the general rule in section 105.

16.91. Section 105-illustration (vi)-commorientes.-

Illustration (vi) to section 105 possesses the greatest juristic interest, dealing, as it does, with the situation of 'commorientes'. It reads as follows:

"(vi) The testator and the legatee perished in the same ship-wreck. There is no evidence to show which dies first. The legacy lapses."

16.92. Presumption regarding the 'younger' surviving the 'elder'.-

It is the situation that requires some comment. The case law on the point may first be briefly stated. In a Bombay ease1, the question regarding the survivorship of the 'younger' to the 'elder' came up. Two persons-the uncle aged 60 years and his nephew aged 18 years-had died on the same day. There was no positive evidence as to who died earlier. The High Court held that the probabilities were in favour of the younger man surviving the elder.

This question also came up before the Oudh Chief Court in 1934.2 Two brothers died in a fire. The widow of one of them claimed the entire property on the ground that her husband, being the younger of the two, must be deemed to have survived the other. It was held that there was no such presumption in the absence of direct evidence and that the onus of proof was on her. Since she failed to prove it, her suits was dismissed.

1. Y.N. Kulkarni v. Laxmi Bai, AIR 1922 Born 347.

2. Nekshi Kaur (mt) v. Mt. Jawala Kaur, AIR 1934 Oudh 101.

16.93. Sind case.-

This question also came up before the Chief Court of Sind in 1939.1 A woman and her daughter had died together in an earthquake. There was no evidence as to which of them died first. It was held that there was no presumption in law that older died before the younger.

1. Copibai v. Chumhermal Mulchand, AIR 1939 Sind 234.

16.94. Calcutta case.-

The question also came up before the Calcutta High Court in 1944.1 Several persons had died in a common boat disaster and the question arose who had survived. The High Court held it was a question of fact. There was no presumption of law in, this respect. The evidence in the case did not establish the survivorship of either the husband or the wife.

1. Disendra Kumar v. Kuti Minn, AIR 1944 Cal 132.

16.95. Privy Council case.-

A similar question also arose before the Privy Council in 1944.1 A man and his wife had died together in an earthquake. The wife was younger than her husband.. The Privy Council held that there was no -presumption in law that the younger had survived the elder.

1. Agha Mir Ahmed v. Mudassir Shah, AIR 1944 PC 100.

16.96. Case law under Hindu Succession Act.-

So much as regards the cases under the general law. It may be mentioned that section 21 of the Hindu Succession Act, 1955, provides a presumption in this regard. Some questions that arose after the Act was passed in 1956 may be noted. In all the reported cases1-3 close relations like husband and wife (and, in two cases, mother and daughter) had died in circumstances where no evidence of survivorship was available.

In all the cases, the courts relied upon the presumption enacted in section 21 of the Hindu Succession Act to the effect4 that it shall be presumed, until the contrary is proved, that the younger survived the elder. As already stated,5 the Report of the Law Commission on the Evidence Act deals with this point specifically.6

1. Mahabir Singh (in re:), AIR 1963 Pimj 66 (Hindu Succession Act).

2. Jayantilal v. Mehta Chhanalal, AIR 1968 Guj 212 (Hindu Succession Act).

3. D. Fadmaria Setty v. Gyanchandrappa, AIR 1970 Mys 87 (Hindu Succession Act).

4. Compare section 184, Law of Property Act, 1925 (English).

5. Para. 16.91, supra.

6. Law Commission of India, 69th Report (Indian Evidence Act)-Ch. 50.

16.97. American Law.-

Besides the material mentioned above or referred to in the Report of the Law Commission on the Evidence Act,1 reference may be made to the (American) Uniform Simultaneous Death Act.2

The principal provisions of the Uniform Simultaneous Death Act read as under:-

"1. No sufficient evidence of survivorship.

Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived except as provided otherwise in this Act.

2. Survival of Beneficiaries.

If property is so disposed of that the right of a beneficiary to succeed to any interest therein is conditional upon his surviving another person, and both persons die, and there is no sufficient evidence that the two have died otherwise than simultaneously, the beneficiary shall be deemed not to have survived.

If there is no sufficient evidence that two or more beneficiaries have died otherwise than simultaneously and property has been disposed of in such a way that at the time of their death each of such beneficiaries would have been entitled to the property if he had survived the others, the property shall be divided into as many equal portions as there were such beneficiaries and these portions shall be distributed respectively to those who would have taken in the event that each of such beneficiaries had survived."

1. Law Commission of India, 69th Report (Indian Evidence Act).

2. Sections 1-2, Uniform Simultaneous Death Act.

The Indian Succession Act, 1925 Back

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