Report No. 110
22.2. Section 138.-
Section 138 provides that where a fund is bequeathed absolutely to or for the benefit of any person, but the will contains a direction that it shall be applied or enjoyed in a particular manner, the legatee shall be entitled to receive the fund as if the will had contained no such direction. Under the illustration, a sum of money is bequeathed towards purchasing a country residence for A or to purchase an annuity for A or to place A in any business. A chooses to receive the legacy in money. He is entitled to do so.
The corresponding section of the Transfer of Property Act is section 11. In addition, as has been pointed out by one commentator1, section 10 of the Transfer of Property Act also declares to be void a condition in restraint of transfer or alienation of property. The Succession Act does not contain a similar section, but the word "enjoyment" in section 138 would include a restraint on alienation. As to the word "absolutely" in section 138, it qualifies not only the word "bequeathed", but also the words "for the benefit of any person". Hence the section does not apply to a life interest.2
1. Paruck Succession Act, (1977), p. 428.
2. Kidar Nath v. Gaya Nath, AIR 1930 Cal 731.
22.3. Section 139.-
Section 139 provides that where a testator absolutely bequeaths a fund so as to sever it from his own estate, but directs that the mode of enjoyment of it by the legatee shall be restricted so as to secure a specified benefit for the legatee, then, if that benefit cannot be obtained for the legatee, the fund belongs to him as if the will had contained no such direction.