Report No. 110
XVI. Effect of Lapse and Analogous Situations
16.107. Section 108-Lapse of part of general residue.-
According to section 108,1 where a share which lapses is a part of the general residue bequeathed by the will, that share shall be treated as undisposed of. The illustration to the section states that 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.
Section 103 may be contrasted with section 108, while, under section 103, a legacy that lapses will form part of the residue and will go to the residual legatee, section 108 comes into operation when the residue itself lapses by the death of the residuary legatee before the testator or in any other manner. Where the residue is undisposed of or lapses, it will go as on intestacy.2
Where there are several residuary legatees, who are given the residue as tenants is common, the share of any one who dies in the lifetime of the testator will lapse, and will not augment the remaining parts of the residue, but will, by virtue of section 108, devolve as undisposed of.
No changes are needed in this section.
1. Paruck Indian Succession Act, (1977),T. 262.
2. Tokevdas v. Premji, ILR 13 Born 61.
16.108. Section 109-bequest to lineal descendant dying in lifetime of testator.-
Under section 109, where a bequest has been made to any child or other lineal descendant of the testator, and the legatee dies in the lifetime 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.
Stated in a simplified form, the proposition intended to be enacted is that there is no lapse of the bequest if the legatee, being a child or other lineal descendant of the testator, himself leaves a lineal descendant who survives the testator. The legal fiction created is that the bequest shall take effect as if the legatee died immediately after the death of the testator. A notional distribution of the potential share of the legatee would then be made. This section is an exception to the general rule of 'lapse' in section 105.
The expression "child" in the section includes "children" also.1
1. Shanti v. Bhagwan, AIR 1984 313, Para. 10.
16.109. Meaning of 'lineal descendant'.-
The expression 'lineal descendant' occurring in the opening part of section 109 includes male as well as female lineal descendants,1 of the testator. No clarification is needed on this point. With reference to the same expression used for the second time (in relation to the lineal descendant of the legatee), it does not extend to any other heir,2 but it should also be noted that once the condition of the existence of a lineal descendant is satisfied, then the benefit (under the last part of the section), is available to every heir of the legatee, and is not confined to heirs who are lineal descendants of the legatee.
The above propositions are offered merely by way of elucidation. The section itself needs no change.
1. Bhim Nath v. Tara, AIR 1929 PC 162.
2. Mohammed v. Aziz-un-Nissa, AIR 1935 Oudh 437.
16.109A. Gifts to children-recent reform in England.-
By the Administration of Justice Act, 1982, the earlier English provision in section 33 of the Wills Act, 1837 has been revised in regard to gifts to children or other issues who leave issue living at the testator's death.
The most important provision is in section 33(1) (as revised), reading as under:-
"33. (1) Where-
(a) a will contains a devise or bequest to a child or remoter descendant of the testator; and
(b) the intended beneficiary dies before the testator, leaving issue; and
(c) issue of the intended beneficiary are living at the testator's death, then, unless a contrary intention appears by the will, the devise or bequest shall take effect as a devise or bequest to the issue living at the testator's death."
A similar provision has been made in section 33(2) regarding gifts to a class which consists of children. Other incidental provisions have also been made.
16.110. Section 110.-
We now proceed to section 110, which provides that where a bequest is made to one person for the benefit of another, it does not lapse by the death (in the testator's life time); of the person to whom the bequest is made. The rationale of the section can be easily discerned. The principle is, that the law looks to the real beneficiary, and not to the nominal owner, who is merely the medium through which the gift is made. His death therefore (that is, the death of the nominal owner) should make no difference to the subsistence of the gift. The section does not appear to need any change.
16.110A. Gifts to spouses-recent reform in England.-
In England, in regard to gifts to spouses, section 22 of the Administration of Justice Act, 1982, implementing a recommendation of the Law Reform Committee,1 introduces a presumption. The object of the section is to cover cases where, for example, the testator makes a gift of all his property "to my wife and after her death to our children."
This type of bequest, often found in home-made wills, would normally be interpreted as conferring only a life interest on the wife, because of the need to preserve the remainder to the children. Generally, however, this is contrary to the intention of the testator who really intends to give the property exclusively to his wife, but to have a say over its ultimate destination. Section 22 of the Administration of Justice Act, 1982 now provides as under:-
"22. Except where a contrary intention is shown, it shall be presumed that if a testator devises or bequeaths property to his spouse in turns which in themselves will give absolute interest to the spouse, but by the same instrument purports to give his issues an interest in the same property, the gift to the spouse is absolute notwithstanding the purported gift to the issue."
1. Law Reform Committee, Report on the Interpretation of Wills, (1973), Cmd. 5301.
16.111. Section 111-Survivorship in case of bequest to described class.-
This takes us to section 111. Section 111 reads as under:-
"111. 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 the testator.
Illustrations
(i) A bequeaths 1,000 rupees to the "the children of B" without saying it is to be distributed among them. B had died previous to the date of the will, leaving three children C, D, 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 lifetime 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 lifetime of A, C having made a will, E having made no will. A had 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 lands 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 lifetime 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."
The section needs no change.
