Report No. 110
Chapter 26
Ademption (Sections 152 to 266)
I. Introductory
26.1. Scope of Chapter.-
The topic of ademption of legacies is dealt with in sections 152 to 166. Where property specifically bequeathed does not belong to the testator at the time of his death or has been converted into property of a different kind, the legacy cannot take effect by reason of withdrawal of its subject-matter from the operation of the will. This is "ademption"-section 152. The rationale is disappearance of the property in specie. In contrast, a demonstrative legacy is not adeemed-section 153. Ademption essentially rests on the presumed intention of the testator.
That at least, is the approach adopted by the Indian legislature. The concept of ademption is simple, but certain detailed provisions contained in sections 153 to 159 and 162-were considered necessary in order to provide for various situations in regard to which controversies could possibly arise. Similarly, a few provisions-section 160, 161 and 164 to 166-deal with cases in which a specific bequest is not a deemed.
26.2. Ademption-Introductory.-
In general, ademption arises where an asset bequeathed by the will ceases to conform to the testator's power of disposition, or ceases to conform to the description given in the will, ademption may thus arise by reason of non-existence of the subject-matter bequeathed or by reason of change in its nature. Non-existence of the asset, in its turn, might arise either from external factors, (for example, destruction by the forces of nature), or from acts of the testator (for example, by sale of the thing bequeathed by the testator between the date of the will and the date of his death).
A change in the nature of the asset may arise, again, by external factors (for example, earthquake) or by acts of the testator (for example, when the testator converts a golden chain into a cup of gold). The common thread is withdrawal of the subject-matter from the operation of the will (section 152). Sometimes, the change arises by reason of legislative action. This aspect will be discussed in detail when dealing with the definition of "ademption".1
1. See discussion as to section 152, para. 26.6, infra.
26.3. Ademption - the concept.-
Indian case-law on the subject of ademption is rather scanty. The theoretical interest of the topic is, however, considerable and one or two sections1 require a detailed discussion. As the sections on the subject are rather large in number, it will be convenient to refer first to a few general aspects and also to the scheme of arrangement, so as to facilitate a better understanding of the inter-relationship between various sections. The heading of Chapter 17 indicates that the topic dealt with in these sections is "ademption".
The expression "ademption" is not directly defined. However, it is indirectly explained in the latter part of section 152, which provides that (in the circumstances dealt with in the section), the legacy is "adeemed", that is to say, it cannot take effect by reason of the subject-matter having been withdrawn from the operation of the will. This explanation is, in substance, the same as the definition of "ademption" given in some of the English cases-such as, "a failure of a specific bequest owing to the subject of the bequest not being in existence in specie as a part of the testator's estate at the time of his death".
1. For example, section 166.
26.4. Scheme of the sections.-
This general principle is dealt with in section 152, which applies where there is a "specific" legacy. Section 153 rules out ademption in the case of "demonstrative" legacies. Sections 154 to 157 and 166 deal with cases where the testator, having bequeathed the "right to receive a thing", himself receives the thing bequeathed.
Sections 158-159 and 165-166 relate to a particular kind of property-"stock". Sections 160-161 deal with the effect of removal of goods between the date of the will and the date of the death of the testator. Sections 163-164 deal with the effect of a change in the situation of the goods. Sections 165-166, as already stated, deal with 'stock'.
The sections proper may now be dealt with.
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