Report No. 110

V. Receipt by Testator

26.18. Section 162.-

Section 162 provides that where the "thing bequeathed"-which really means "the thing specifically bequeathed"-is not the right to receive something of value from a third person, but the money or other commodity which may be received from the third person by the testator himself or by his representatives, the receipt of such sum of money or other commodity by the testator shall not constitute an ademption; but if he mixes it up with the general mass of his property, the legacy is adeemed.

This section is to be contrasted with section 154, whereunder1 there is ademption where the thing specifically bequeathed is the right to receive something of value from the third party, and the testator himself receives it. The reason why section 154 provides for ademption is that the thing bequeathed is itself the subject to be extinguished, while the reason why section 162 prohibits ademption is that the amount received retains its separate identity.

In practice, it may not always be easy to determine, on the language of the will, whether the case falls under section 154 or section 162. In the absence of concrete Indian cases raising questions, however, it is not considered to disturb the two sections on this point.

1. Para. 26.8, supra.

26.19. Recommendation to amend section 162.-

However, it should be made clear that section 162 applies only to "specific bequests", since the expression "thing bequeathed", in this context means the thing specifically bequeathed. This is clear from the later reference to "mixture with the general mass". We recommend that section 162 should be amended for the purpose, by substituting, for the words "the thing bequeathed", the words "the thing specifically bequeathed".