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Report No. 110

III. Ademption of Part of Bequest

26.9. Sections 155 and 156-Receipt of a part.-

Section 155 and 156 deal with the situation where a part of the thing bequeathed is received and may be considered together. They read as follows:

"155. The receipt by the testator of a part of an entire thing specifically bequeathed shall operate as an ademption of the legacy to the extent of the sum so received.

156. If a portion of an entire fund or stock is specifically bequeathed, the receipt1 of a portion of the fund or stock shall operate as an ademption only to the extent of the amount so received; and the residue of the fund or stock shall be applicable to the discharge of the specific legacy".

1. 1.e. the receipt by the testator.

26.10. Recommendation to amend section 155 and section 156.-

The two sections seem to overlap, but do not, in fact, overlap. There is a distinction between the two sections, though it is not apparent at the first reading. Section 155 applies where an entire thing is specifically bequeathed and then the testator receives a part of it, while section 156 applies where the thing bequeathed itself is a quotient of the stock, and the testator receives a portion of the fund, or stock. This should be made more clear; it is also desirable to introduce symmetry between sections 155 and 156-a symmetry which, in certain respects, is lacking at present.

Accordingly, we recommend the following re-drafts of sections 155 and 156:

"155. If an entire thing is specifically bequeathed, the receipt by the testator of a part of the thing specifically bequeathed shall operate as an ademption of the legacy to the extent of the sum so received."

"156. If a portion of an entire fund of stock is specifically bequeathed, the receipt by the testator of a portion of the fund or stock shall operate as an ademption only to the extent of the amount so received; and the residue of the fund or stock shall be applicable to the discharge of the specific legacy".

26.11. Section 157.-

Section 157 deals with the order of payment where a portion of a fund is specifically bequeathed to one legatee and another legacy charged on the same fund is bequeathed to another legatee, and the testator receives a portion of that fund and the remainder is insufficient to pay both the legatees. In certain respects, the same topic is dealt with in section 151, which deals generally with the order of payment when a legacy is directed to be paid out of the fund and a portion of that fund is also specifically bequeathed.

In other words, competition between a specific legacy and a demonstrative legacy is a common in gradient of both section 151 and section 157, and a specific provision for cases where the residue of the fund is deficient is also another common ingredient of the two sections. However, the distinction between the two sections lies in this, namely, that while section 151 deals with the generality cases section 157 deals with the specific cases where the problem arises because it is the testator who receives a portion of the fund in his life time.

So far as can be gathered from the terms of the two sections, there is no difference in the actual rule to be applied. The proportion enacted in section 157 is that from the fund in question, the portion specifically bequeathed is to be paid first to the legatee; the residue of that fund is to be applied to the demonstrative legacy, and if there is a deficiency, the rest of the legacy is to be paid out of the general assets of the testator. The last mentioned provision1 is in conformity with the general principle that there is no ademption of a demonstrative legacy, and it shall be paid out of the general assets of the testator where necessary.

1. Section 153.

26.12. Recommendation to delete section 151.-

This overlapping between sections 151 and 157 raises the question whether it is at all necessary to have both the sections in the Act. The law should, in our view, be simplified by deleting one of the sections and combining the gist of the two sections in the other section-omitting, of course, matter which is repeated in both.

Deficiency under section 151 may arise because of initial inadequacy of the fund, while deficiency under section 157 may arise out of subsequent inadequacy of the fund by receipt by the testator himself of a portion thereof. But the effect is the same. It would therefore be more convenient to omit section 151, and to deal with the matter in section 1571.

1. Section 151 to be omitted, if the above recommendation is accepted.

26.13. Redraft of section.-

On the above assumption1, the following redraft of section 157 is recommended:-

"157(1) Where-

(a) a portion of a fund is specifically bequeathed to one legatee, and

(b) a legacy is directed to be paid out of the same fund to another legatee, then

(i) the portion specifically bequeathed shall first be paid to the legatee, and

(ii) the demonstrative legacy shall be paid out of the residue (if any), so far as it will extend, in payment of the demonstrative legacy.

(2) If the remainder of the fund is insufficient to pay the demonstrative legacy, so much of the demonstrative legacy as remains unpaid shall be paid out of the general assets of the testator".

1. The assumption is that section 151 shall be deleted.

26.14. Illustration to section 151 to be transferred to section 157, after deleting section 151.-

The illustration to section 151 may be transferred to section 157 as illustration 1, and the present illustration to section 157 may be renumbered as illustration 2.



The Indian Succession Act, 1925 Back




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