Report No. 110
23.3. Indian section preemptory.-
Unfortunately, section 141 is expressed in preemptory language, and not in words that would operate merely as a presumption. The section categorically assumes that every legacy is given to the executor as given in the character of executor, thereby disallowing parol evidence to rebut the assumption.1 Hence, it is not possible to read, in the section, as it now stands, any proviso to the effect that it shall operate only if no contrary intention is expressed in the will.2
1. Prosono v. Administrator-General, 1888 ILR 15 Cal 83.
2. T.S. Rajam v. Pankajam, AIR 1944 Mad 335.
23.4. Recommendation to amend section 141.-
For obvious reasons, it is desirable that the section should be subject to an intention to the contrary, as in English law.1 We, therefore, recommend that section 141 should be amended for the purpose, by adding, at the end, the words "unless a different intention appears from the will."
1. Para. 23.2, supra.