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Report No. 110

42.3. Want of assent-Recommendation.-

It has been held by Bombay High Court1 that even where it was expressly directed in the will that the legatee may take possession of his legacy without the assent of the executor, yet, if he does take possession, the executor may maintain an action for trespass.

The Calcutta High Court has held2 that the legatee has a vested right to the legacy even though the assent of executor is not given, with the result that any alienation by the legatee before assent by the executor is not void, but merely inchoate until assent is given. It was explained that the section is meant to protect the executor, so that he may have money available for the payment of debts.

These rulings show that there is some obscurity as to the vesting of title, pending assent.

It appears to us that such an important matter as the vesting of title should not be left in doubt. The position should be improved by a suitable clarification, to the effect that nothing in this section shall be deemed to invalidate a transfer of the property (which is the subject-matter of the legacy) by the legatee before assent by the executor or administrator, but every such transfer shall be regarded as conditional on the assent of the executor or the administrator, as the case may be. We recommend that section 332 should be amended by inserting an Explanation on the above lines.

1. Hasnali v. &Tatlal, (1912) 14 Born LR 732: ILR 37 Bom 211.

2. Khagendra v. Khatranath, 1922 ILR 50 Cal 171 (175 to 177) (Mookerjee and Cuming, JJ.).

The Indian Succession Act, 1925 Back

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