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Report No. 110

Chapter 34

Representative Title to the Property of the Deceased on Succession (Sections 211 to 216)

1. Introductory

34.1. Scope of the Chapter.-

Representative title to the property of the deceased on succession is an important topic of the law of succession dealt with in sections 211 to 216. The Chapter begins with a positive provision in section 211, which enacts that the executor or administrator of a deceased person is his legal representative for all purposes, and all property of the deceased vests in him as such.

In case of an administrator, the very definition of that expression1 requires that he must be appointed by a competent authority. As regards an executor, section 213(1) provides, inter alia, that (in cases where that section applies) no right as executor can be established in a court without obtaining probate or letters of administration with the will annexed. Thus, in some form or other, the court enters into the picture in most cases.

1. Section 2(a): "Administrator".

34.2. Executors and administrators.-

The position in India under the Act offers a contrast to the continental system. In most countries of Europe, where, in modern times, the influence of Roman law has been predominant, property passes on immediately to the beneficiaries, who by their acceptance of the benefit become directly liable for the payment of the deceased's debts.

In England, however, this is not the case1. "With us, the property must first vest in personal representatives whose duty it is to administer the estate by paying debts and distributing the residue amongst the persons beneficially entitled. Moreover, their authority to administer must be ratified or created by what is in fact and in law an order of court, and this order of court (either probate or letters of administration) becomes an essential link in the title of the beneficiaries."

1. Stephen Commentaries on the Low of England, (1950), Vol. 1, p. 520.

34.3. Origin of executor and administrator.-

The conception of the personal representative is founded upon the position of the executor appointed by the testator's will to execute its terms, an institution prevalent throughout Europe in the Middle Ages and perhaps traceable to the ancient German Salman to whom property was transferred in order that he might carry out the wishes of the transferer.

Where no executor was appointed, the medieval Church claimed the right to administer, though in practice the Bishop appointed some member of the deceased's family (by granting to him letters of administration) to act as administrator in his place. This practice was (in England) made compulsory by statute as early as 1357, and thereafter the position and functions of the administrator have been practically assimilated to those of the executor.1

1. Stephen Commentaries on the Law of England, (1950), Vol. 1, p. 520.

34.4. Scheme of sections 212-214.-

The scheme of these sections is that where those sections apply, it becomes necessary to obtain the appropriate document conferring or recognising the representative title, before a right can be established of the property of the deceased.

The Indian Succession Act, 1925 Back

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