Report No. 110
Contingent Bequests (Sections 124 and 125)
20.1. Contingent bequest.-
Contingent bequests are dealt with in sections 124 and 125. A bequest may be contingent upon a specified uncertain event, (section 124) or on survivorship (section 125). Where no time is mentioned for the occurrence of the uncertain event, the material time for such occurrence is the time of payment or distribution. That is the gist of section 124. Where no time is specified for the survivorship, the material time, again, is the time of payment or distribution, according to section 125. But that section is expressly made subject to a contrary intention-a provision which is not found in section 124.
20.2. Section 124-Bequest contingent upon uncertain event-no time being specified.-
Of these two sections, section 124, because of its rigidity and because of certain other defects, needs discussion. The section reads as under:-
"124. Where a legacy is given if a specified uncertain event shall happen and no time is mentioned in the will for the occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequeathed is payable or distributable.
(i) A legacy is bequeathed to A, and, in case of his death, to B. If A survives the testator, the legacy of B does not take effect.
(ii) A legacy is bequeathed to A, and in case of his death without children, to B. If A survives the testator or dies in his lifetime leaving a child, the legacy to B does not take effect.
(iii) A legacy is bequeathed to A when and if he attains the age of 18, and, in case of his death, to B. A attains the age of 18. The legacy to B does not take effect.
(iv) A legacy is bequeathed to A for life, and, after his death to B, and "in case of B's death without children", to C. The words "in case of B's death without children" are to be understood as meaning "in case B dies without children during the lifetime of A."
(v) A legacy is bequeathed to A for life, and, after his death to B, and, "In case of B's death", to C. The words "in case of B's death" are to be considered as meaning "in case B dies in the lifetime of A"."
20.3. English cases.-
Section 124, as has been pointed out by the Privy Council,1 is based on the English case of Edwards v. Edwards, (1852) 15 Beav 357: 51 ER 576. The English case, has however, been partly overruled by the House of Lords.2 The House of Lords judgment3 was described by the Privy Council (in another appeal from India) as "one which emerged through a thicket of technical decisions to a ground of plain and pre-eminent good sense."
1. Bhupendra v. Amarendra, 1916 ILR 43 Cal 432 (440) (PC).
2. 0' Mahenv v. Burdett, 1874 LR 7 HL 388; see para. 20.11, infra.
3. Chunilal v. Bai Samrath, 1914 ILR 38 Bora 399 (413) (PC).
20.4. Defects in section 124.-
Our examination of section 124 reveals that the section suffers from certain serious defects. If these defects are to be rectified, a modification of the text of the section, as well as of illustrations two and four to the section, will be needed. Details of the needed amendment will be indicated in the course of the discussion in the succeeding paragraphs.
20.5. Section 124-second illustration.-
Let us first dispose of the second illustration to section 124. The facts presented in the second illustration are as under: A legacy is bequeathed to A and, in case of his death without children, to B. If A survives the testator or dies in his lifetime leaving a child, the legacy to B does not take effect, according to the illustration.
The illustration does not, however, seem to be in conformity with English law, nor with realities. In fact, even the earlier English case1 on which the main part of the section is based, did not lay down any such proposition applicable in all cases. Lord Romilly, M.R. in that case, taking up the second class of cases, namely, gifts to A for life and if he shall die without children, then a gift over, observed as follows:-
"In the second of the supposed cases, there is a manifest distinction. There the event spoken of on which the legacy is to go over is not a certain, but a contingent event. It is not in case of the death of A but in case of his death without children. In these cases, it has always been held that if at any time, whether before or after the death of the testator, A died without leaving a child, the gift over takes effect, and the legacy vests in B."
1. Edwards v. Edwards, 1852 LJ (Chancery) 324.
20.6. Second illustration partly inaccurate.-
In view of these observations in the judgment in the earlier English case, it is surprising that the second illustration to section 124 states that the gift to B does not take effect where A (the first holder) "survives the testator". A may survive the testator, but may die without leaving a child. In such a case, according to the earlier English case, the gift over takes effect. The second illustration is thus different from the English position.
20.7. Need for amendment of the second illustration.-
In our view, the English rule correctly reflects the testator's intentions in the generality of cases. The second illustration should, therefore, be revised as under:-
"(ii) A legacy is bequeathed to A, and in case of his death without children, to B. If A survives the testator and dies leaving a child, or dies in his lifetime leaving a child the legacy to B does not take effect. But if A dies without leaving a child, whether before or after the death of the testator, the legacy to B takes effect."
20.8. Section 124-fourth illustration.-
The fourth illustration to section 124 also requires detailed comment. Under the illustration as given in the Act,1 the words referring to B's death without children are to be understood as meaning "in case B dies without children during the life time of A."
1. Para. 20.2, supra.
20.9. Earlier English case now over-ruled.-
The section here gives statutory effect to the earlier English case1. In fact, the fourth illustration to the section actually reproduces the fourth rule enunciated in that case.2 However, this particular rule has, in England, been overruled by two decision3-4 of the House of Lords.5
1. Edwards v. Edwards, (1852) 15 beav 357.
2. S.M. Shah Law of Executory Bequests, (1936) 38 Born LR (Journal) 1.
3. 0' Mnhenev v. Burdett, (1874) Law Reports 7 House of Lords 388.
4. Ingram v. Soutten, (1874) Law Reports 7 House of Lords 408.
5. See para. 20.11, infra.
20.10. Present position in England.-
According to the present English law, where the legacy is given in the circumstances specified in section 124, "death" would mean (unless the will indicates an intention to the contrary), death at any time, and not merely death in the life time of the prior holder.
20.11. Later development in England.-
In this connection, it may be of interest to note that section 124 reproduces section 111 of the Indian Succession Act of 1865, which was itself based (in part) on the English law as then understood. (However, the second illustration to section 124, taken over from the earlier Act, does not follow even the earlier English1 law). The law on the subject was altered by two judgments of the House of Lords pronounced in 1874, which are very much material to a consideration of section 124, particularly the fourth illustration.
In the House of Lords, there was an executory bequest whose vesting depended upon the "death" of the previous holder without issue. The question to be considered was, whether the contingency of 'death' referred to death of the previous holder before the preceding life estate came to an end, or whether it referred to his death taking place at any time, that is to say, death before or after the life time of the holder of the preceding life estate.
The earlier English judgement-Edwards v. Edwards, 4th Rule-would have supported the first Construction, but the House of Lords overruled2 that part of the earlier judgment and held that unless the will indicated a contrary intention, the contingency in question (death without issue) referred to the death of the previous holder without leaving issue at any time and not necessary to his death before the termination of the preceding life estate.
As a result, the first person to whom an absolute estate is given under the will would take it, subject to the defeasance clause in favour of the executory bequest operating in the manner mentioned above.
Lord Heatherly suggested that the fourth rule enunciated in the earlier English case would be better stated thus3:-
"The period to which the executory devise will be referred will be the period of death of the first taker, unless there are directions in the will inconsistent with that supposition".
1. See para. 20.5, supra.
2. Cf. para. 20.3, supra.
3. 0' Mahenv v. Burdett, 1874 LR 7 HL 388 (404).
20.12. Observation in Madras case.-
Thus, the forth illustration incorporates a rule now discarded in England. It has also been pointed out1 that Hindu law as it was administered in India (before the statutory law of succession was extended to Hindus) was precisely the same as the English rule established by the House of Lords in its decisions of 1874.
1. (a) Soorjeemoney Dosce v. Denobundoo Mullick, (1862) 9 MIA 123 (PC).
(b) Bhoobum Mohini v. Harrish Chander, 1878 ILR 4 Cal 23.
20.13. It is further proper to point out that, with reference to section 111 of the Succession Act of 1865, (i.e. the predecessor of the present section 124) Wallis, C.J. had in a Madras case1 observed that section was "rather an unfortunate section" which was enacted to give statutory effect to the decision in Edwards v. Edwards which was, in part over-ruled after the passing of the Indian Succession Act by the House of Lords.
1. Sounderrajan v. Natarajan, 1920 ILR 44 Mad 446.
20.14. Earlier rule whether defensible.-
Let us now examine if there is any theoretical reason for adhering to the old English rule on the point discussed above. The fourth illustration to section 124 should also be revised in conformity with the above recommendation. The object could be achieved by reforming the last eleven words of the illustration as under:-
"in case B dies without children during or after the lifetime of A."
20.17. Change recommended in second illustration to section 124.-
The second illustration to section 124 should also be revised, as already recommended1.
1. Para. 20.17, supra.
20.18. Section 125-Bequest to such of certain persons who shall be surviving at some period not specified.-
This takes us to section 125. It reads as under:-
"125. Where a bequest is made to such of certain persons as shall be surviving at some period, but the exact period is not specified, the legacy shall go to such of them as are alive at the time of payment or distribution, unless a contrary intention appears by the will."
Four illustrations appearing below the section are quoted below:-
"(i) Property is bequeathed to A and B to be equally divided between them, or to the survivor of them. If both A and B survive the testator, the legacy is equally divided between them. If A dies before the testator, and B survives the testator, it goes to B.
(ii) Property is bequeathed to A for life, and, after his death, to B and C to be equally divided between them, or to the survivor of them. B dies during the life of A, C survives A. At A's death the legacy goes to C.
(iii) Property is bequeathed to A for life, and after his death to B and C, or the survivor, with a direction that, if B should not survive the testator, his children are to stand in his place. C dies during the life of the testator; B survives the testator, but dies, in the lifetime of A. The legacy goes to the representatives of B.
(iv) Property is bequeathed to A for life, and after his death, to B and C, with a direction that, in case either of them dies in the lifetime of A, the whole shall go to the survivor. B dies in the lifetime of A. Afterwards C dies in the lifetime of A. The legacy goes to the representative of C".
The section has created no problems and we have no changes to recommend in the section.