Report No. 110

VI. Change in the Thing Bequeathed by Operation of Law

26.20. Section 163-change in a thing specifically bequeathed.-

Under section 163, where a thing specifically bequeathed undergoes a change between the date of the will and the testator's death, and the change takes place by operation of law, or in the course of execution of the provisions of any legal instrument under which the thing bequeathed was held, the legacy is not adeemed by reason of such change.

26.21. Position in England.-

It should be noted that this is not the rule in England, even though some of the commentators in India state that the Indian section is based upon the English law. In England, ademption takes place even in such circumstances, unless the statute which brought about the change in the nature of the property makes a contrary provision1. The situation has been described as one of "statutory disapropration of property rights in favour of the state2." Often, however, statutes do make a provision preventing ademption.

1. Mellows Law of Succession, (1977), pp. 523, 524.

2. See Viscount Galway's Will (in re:), (1950) Ch 1: (1950) 2 All ER 419.

26.22. Rule in India.-

However, the legislature in India has adopted a different rule perhaps on the assumption that since the change in question takes place without the will of the testator, one can presume that he had not changed his intentions as to affect the destination of the subject-matter.

26.23. Delhi case.-

At this stage we should refer to a Delhi case relevant to change by operation of law. A Hindu executed a will according to which, on his death, his property was to go to the second wife for her life time and, after the death, equally to his son's sons from the first wife and the sons from the second wife. The property was in the N.W. Province (now in Pakistan). After the partition the family moved to India.

On his death the widow claimed and obtained compensation for the property left in Pakistan on the basis of the will. She later purchased some property in India from out of the compensation so received. On the death of the widow, the son's sons from the first wife claimed half share in the property so purchased out of the compensation, relying on the will1.

It was held that the claimants were not entitled to the half share. The compensation received was in the form of money. By no stretch of imagination it could be treated as property "situated in Pakistan". Once the property had ceased to exist in its original form, the limitation on the rights of enjoyment no longer applied. It would be too much to say that this compensation money had to be preserved for ever in whatever form it goes and treated as if it was the property referred to in the will.

The widow could not be treated as being a trustee under the terms of the will. She had no right to sell at all, being a limited owner. If by accident, the property is sold either through legislation or through other circumstances, then there is no obligation on her to live on the income of that compensation and leave the corpus to the persons entitled to the residue of the estate. Therefore, the doctrine of conversion could not be invoked in the present case.

1. Chaman Lal v. Kundan Lal, AIR 1979 Del 240, paras. 11 to 14 (D.K. Kapur, J.) (November-December).

26.24. The High Court further held that there was no direction in the will that any compensation received in respect of that property would go to the persons who would otherwise have got the property. This meant that the gift had been adeemed1, because it cannot be given effect to. It was observed that this was unfortunate, because if this situation had at all been in the mind of the testator, he could have made a direction regarding the same. The testator could have made a codicil or a new will regarding the compensation. But the will was silent regarding the compensation and it could not be made operative qua the compensation. In the circumstances, the suit was dismissed.

1. Halsbury's, 3rd Edn., Vol. 39, p. 934, Article 1412, cited.

26.25. The judgment does not discuss section 163, and attention of the court was perhaps not drawn to the section.

26.26. Change by order of court.-

We may discuss another aspect of section 163. Where a change in the thing bequeathed takes place by an order of the court, it should apparently be regarded as a change by 'operation of law' within section 163. Here again, the common law was different, as illustrated by English cases1 where, by an order in lunacy proceedings, certain shares specifically bequeathed were directed to be sold, and the proceeds were to be invested in other securities. The bequest of such shares was held to be adeemed. The position in England was later altered by statute2.

1. (a) Jones v. Green, Law Reports 5 Eq 555.

(b) Freer (in re:), 22 Chancery Division 622.

2. Section 123, Lunacy Act, 1890.

26.27. Section 164-Change without knowledge of testator.-

This takes us to section 164, which provides that where a thing specifically bequeathed undergoes a change without a knowledge or sanction of the testator, there is no ademption. This situation is analogous to that under section 160, whereunder removal of the goods from the place described in the will without knowledge or sanction of the testator does not lead to ademption. No change is required in this section.

26.28. Section 165-Stock replaced after loan.-

Section 165 provides that where stock which has been specifically bequeathed is lent to a third party on condition that it shall be replaced, and it is replaced accordingly, the legacy is not adeemed. This section also does not seem to require any change.

26.29. Section 166.-

Section 166 reads as follows:

"166. Where stock specifically bequeathed is sold, and an equal quantity of the same stock is afterwards purchased and belongs to the testator at his death, the legacy is not adeemed".

This section is based on the dictum of Lord Talbot in an early case1-2. Lord Talbot said in that case: "If the selling out the stock is an evidence to presume an alteration of the intention of the testator, surely his buying in again is as strong an evidence of his intention that the legatee should have it again". It should be noted, however, that later it has been held3 that in England a legacy is adeemed by the sale of the stock, and will not be revived by a new purchase of similar stock by the testator.

There is, perhaps, some thing to be said for both the views. It can, on the one hand, be said that the testator would not have intended to remove a benefit already conferred. On the other hand, it can be said that he would not have sold the stock if he wished to continue the benefit. In this position, it is better not to change the section, leaving it to the testator to make an express modification of his will, if he so desires.

1. Partridge v. Partridge, Cas Temp Talb 226; Paruck Succession Act, (1977), p. 459.

2. For comment, see Avelyn v. Ward, 1 Ves Sen 420.

3. Pattisan v. Pattison, 1 My&K 12.