Report No. 110
III. Emphasis on Intention Misplaced
31.9. When the matter is viewed in the above light, it becomes a question for serious consideration whether the law in India, as incorporated in section 180, should not be changed. The present law appears to be unduly harsh. It places too much emphasis on the testator's intention. The emphasis might have been derived from the Roman law1, but there is no reason why we should now adhere to that old doctrine.
Perhaps, the Indian section still sticks to the old position because, at the time when (in 1865) the statutory provision on the subject was introduced2 in India for the first time in the law of succession, the position in England was not very definitely settled, that is to say3, whether there should be compensation or there should be forfeiture, was not very clear. Possibly, some misunderstanding of the position was also caused by Swantston's note to one of the cases which reads:
"It is a maxim not of morality but of logic, which compels election between claims in respect not of the injustice, but of the technical incompatibility of their contemporaneous assertions."
1. See Buckland Equity in Ronwn Law, pp. 95-100 referred to by Hanibury Modern Equity, (1957), p. 502, footnote 6.
2. Section 167, Indian Succession Act, 1865.
3. See para. 30.6, supra.
31.10. Ambiguity of the expression "election".-
It also appears that some ambiguity is inherent in the expression "ejection", which may either mean a right of choice between two bequests (on the one hand), or a right to make a choice in favour of retaining his own property, on terms of compensation. Apparently, in civil law, the refractory donee could not retain the property belonging to him on terms of compensation to the disappointed claimant. He forfeited the benefit. But this does not appear to be a just course of action.
The present English rule1 is more fair and should be adopted. Compensation does justice to both the parties and the law need not compel forfeiture of the benefit given to the refractory donee.
1. Para. 31.8, supra.
31.11. Recommendation to revise section 180.-
In the light of the above discussion, we recommend that section 180 should be revised as under:-"180. Where a testator, by his will, professes to dispose of something which he has no right to dispose of the person to whom the thing belongs shall elect either to confirm such disposition or to dissent from it; and in the latter case, he shall compensate any person who has, by virtue of such election, lost the benefits provided for him by the will, such compensation not to exceed the benefits which may have been provided by the will for the person so dissenting."