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Report No. 110

17.19. Section 118-'nearest relative'.-

There is one more change, which is worth consideration with reference to section 118, if the section is to be retained. The words 'nearer relative' occurring in the section have raised a controversy. The Madras High Court has held1 that a widow is not a 'nearer relative'. A bequest to charity by a person who dies two days after the making of the will, leaving a widow, was accordingly held to be valid, on the ground that this section had no application to any relationship2 by marriage.

In coming to this conclusion, the judges relied on the word 'nearer', which they regarded as conclusive. That word, in their opinion, postulated a relationship which could be measured by degrees. There could not be any question of measuring 'nearness' for distance) by comparison between the wife and other relatives.

A contrary view has, however, been taken by the Bombay High Court,3 holding that the widow is included in the term 'nearer relative'.

We are not concerned with the question as to which is the true construction of the section as it stands as present. But the Bombay view4 appears to be preferable in order to protect the interests of the widow. If the section is to be retained, it appears to be desirable to incorporate that view.

Section 118 thus needs to be amended so as to ensure that a bequest to charity shall not be valid if the testator's spouse is alive, unless the will be executed in accordance with certain special requirements. The object could be achieved by inserting the following Explanation below the section:-

"Explanation: The spouse of a person shall be deemed to be the nearest relative of that person for the purposes of this section."

1. Administrator-General v. Simpson, 1902 ILR 26 Mad 532.

2. Contrast section 25(1), Indian Contract Act, 1872.

3. Dinbai v. Pestonjee, O.S. No. 997 of 1917 (Bombay) referred to in Paruck Indian Succession Act, (5th Edn.), p. 259.

4. Para. 17.19, supra.

The Indian Succession Act, 1925 Back

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