Report No. 110

IV. Effect of Election

31.12. Section 181-Deletion recommended.-

According to section 181, an interest relinquished in the circumstances stated in section 180 shall devolve as if it had not been disposed of by the will in favour of the legatee, subject, nevertheless, to the charge of making good to the disappointed legatee the amount or value of the gift attempted to be given to him by the will. The section should be deleted, if section 180 is amended1 as recommended above, since there will be no "relinquishment by the legatee", after such amendment of section 180.

We recommend accordingly.

1. See para. 31.11, supra.

31.13. Section 182.- Section 182 reads:-

"The provisions of sections 180 and 181 apply whether the testator does or does not believe that which he professes to dispose of by his will to be his own.

Illustrations

(i) The farm of Sultanpur was the property of C. A bequeathed it to B, giving a legacy of 1,000 rupees to C. C has elected to retain his farm of Sultanpur, which is worth 800 rupees. C forfeits his legacy of 1,000 rupees of which 800 rupees goes to B, and the remaining 200 rupees falls into the residuary bequest, or devolves according to the rules of intestate succession, as the case may be.

(ii) A bequeaths an estate to B in case B's elder brother (who is married and has children) shall leave no issue living at his death. A also bequeaths to C a jewel, which belongs to B. B must elect to give up the jewel or to lose the estate.

(iii) A bequeaths to B 1,000 rupees, and to C an estate which will, under a settlement, belong to B if his elder brother (who is married and has children) shall leave no issue living at his death. B must elect to give up the estate or to lose the legacy.

(iv) A, a person of the age of 18, domiciled in India but owning real property in England, to which C is heir at law, bequeaths a legacy to C and, subject thereto, devises and bequeaths to B "all my property whatsoever and wheresoever", and dies under 21. The real property in England does not pass by the will. C may claim his legacy without giving up the real property in England."

(As already pointed out1 the illustrations should really have been placed under section 180 or 181).

1. Para. 31.8, supra.

31.14. The reference in section 182 to section 181 should be deleted, if section 181 is deleted as recommended1. The illustrations to the section will require change, if our recommendation2 to substitute compensation for forfeiture is accepted.

Illustration (iv) has become obsolete in view of present English law as to the age of majority, and should be deleted.

On the above basis, the illustrations to section 182 may be revised as under:

"(i) The farm of Sultanpur was the property of C. A bequeathed it to B, giving a legacy of 1,000 rupees to C. C has elected to retain his farm of Sultanpur, which is worth 800 rupees, C must pay B compensation of 800 rupees.

(ii) A bequeaths an estate to B in case B's elder brother (who is married and has children) shall leave no issue living at his death. A also bequeaths to C a jewel which belongs to B. B must give up the jewel (thus confirming the disposition) or (if he elects to retain it) pay compensation to C to the extent of the value of the jewel, but not exceeding the value of the estate.

(iii) A bequeaths to B 1,000 rupees, and to C an estate which will, under a settlement, belong to B if his elder brother (who is married and has children) shall leave no issue living at his death. B must give up the estate or (if he elects to retain it) pay compensation to C to the extent of the value of the estate, but not exceeding one thousand rupees."

(Present illustration (iv) to be omitted).

1. See para. 31.12, supra.

2. See para. 31.12, supra.

31.15. Section 183.- Section 183 reads as under:-

"183. A bequest for a person's benefit is, for the purpose of election, the same thing as a bequest made to himself.

Illustration

The farm of Sultanpur Khurd being the property of B, A bequeathed it to C; and bequeathed another farm called Sultanpur Buzurg to his own executors with a direction that it should be sold and the proceeds applied in payment of B's debts. B must elect whether he will abide, by the will, or keep his farm of Sultanpur Khurd in opposition of it".

The section needs no change, not having created any problems.

31.16. Section 184-person deriving benefit indirectly not put to election.-

Section 184 reads-

"184. A person taking no benefit directly under a will, but deriving a benefit under it indirectly, is not put to his election.

Illustration

The lands of Sultanpur are settled upon C for life, and after his death upon D, his only child. A bequeaths the lands of Sultanpur to B, and 1,000 rupees to C. C dies intestate shortly after the testator, and without having made any election. D takes out administration to C, and as administrator elects on behalf of C's estate to take under the will. In that capacity he receives the legacy of 1,000 rupees and accounts to B for the rents of the lands of Sultanpur which accrued after the death of the testator and before the death of C. In his individual character he retains the lands of Sultanpur in opposition to the will."

This section also may he left as it is.

31.17. Section 185.- Section 185 reads-

"185. A person who in his individual capacity takes a benefit under a will may in another character, elect to take in opposition to the will.

Illustration

The estate of Sultanpur is settled upon A for life and after his death, upon B. A leaves the estate of Sultanpur to D, and 2,000 rupees to B and 1,000 rupees to C, who is B's only child. B dies intestate, shortly after the testator, without having made an election. C takes out administration to B, and as administrator elects to keep the estate of Sultanpur in opposition to the will, and to relinquish the legacy of 2,000 rupees. C may do this, and yet claim his legacy of 1,000 rupees under the will."

The section needs no change, being based on the sound principle that the capacity in which a person takes a benefit is distinct from that in which he opposes the will.

31.18. Section 186.-

Section 186 gives effect to a specific expression of intention by the testator. It reads-

"186. Notwithstanding anything contained in sections 180 to 185, where a particular gift is expressed in the will to be in lieu of something belonging to the legatee which is also in terms disposed of by the will, then, if the legatee claims that thing, he must relinquish the particular gift, but he is not bound to relinquish any other benefit given to him by the will.

Illustration

Under A's marriage-settlement, his wife is entitled, if she survives him, to the enjoyment of the estate of Sultanpur during her life. A by his will bequeaths to his wife an annuity to 200 rupees during her life, in lieu of her interest in the estate of Sultanpur which estate he bequeaths to his son. He also gives his wife a legacy of 1,000 rupees. The widow elects to take what she is entitled to under the settlement. She is bound to relinquish the annuity, but not the legacy of 1,000 rupees."

The section needs no change.

31.19. Section 187.-

Acceptance of a benefit given by a will constitutes an election by the legatee to take under the will, if he had knowledge of his right to elect and of those circumstances which would influence the judgment of a reasonable man in making an election, or if he waives inquiry into the circumstances. This is the provision in section 187, illustrated as under:

Illustrations

"(i) A is owner of an estate called Sultanpur Khurd, and has a life interest in another estate called Sultanpur Buzurg to which upon his death his son B will be absolutely entitled. The will of A gives the estate of Sultanpur Khurd to B, and the estate of Sultanpur Buzurg to C. B, in ignorance of his own right to the estate of Sultanpur Buzurg, allows C to take possession of it, and enters into possession of the estate of Sultanpur Khurd. B has not confirmed the bequest of Sultanpur Buzurg to C.

(ii) B, the elder son of A, is the possessor of an estate called Sultanpur. A bequeaths Sultanpur to C, and to B the residue of A's property. B having been informed by A's executors that the residue will amount to 5,000 rupees, allows C to take possession of Sultanpur. He afterwards discovers that the residue does not amount to more than 500 rupees. B has not confirmed the bequest of the estate of Sultanpur to C."

The principle underlying the section is obviously that of a choice made with full knowledge of the facts. The section need not be disturbed.

31.20. Section 188.-

The next section (section 188) is really a rule of evidence, but finds a place in the Succession Act as a matter of convenience. It reads us under:

"188. (1) Such knowledge or waiver of inquiry shall, in the absence of evidence to the contrary, be presumed if the legatee has enjoyed for two years the benefits provided for him by the will without doing any act to express dissent.

(2) Such knowledge or waiver of inquiry may be inferred from any act of the legatee which renders it impossible to place the persons interested in the subject-matter of the bequest in the same condition as if such act had not been done.

Illustration

A bequeaths to B an estate to which C is entitled, and to C a coal-mine. C takes possession of the mine and exhausts it. He has thereby confirmed the bequest of the estate to B."

The section needs no change. It may incidentally be mentioned that the illustration illustrates the second sub-section.

31.21. Section 189.-

This takes us to section 189. It provides that if the legatee does not, within one year after the death of the testator, signify to the testator's representatives his intention to confirm or to dissent from the will, the representatives shall, upon the expiration of that period, require him to make his election, and, if he does not comply with such requisition within a reasonable time after he has received it, he shall be deemed to have elected to confirm the will.

We have no change to recommend in the section.

31.22. Section 190-Postponement of election in case of disability.-

The special case of disability is dealt with (in the context of election) by section 190 which reads as under:-

"190. In case of disability the election shall be postponed until the disability ceases, or until the election is made by some competent authority."

The section hardly needs any further comment.