Report No. 110
Revised section 37
"37. Where the intestate has left surviving him a child or children, but no more remote lineal descendant through a deceased child, the property shall-
(a) belong to his surviving child, if there is only one, or
(b) shall be divided among all his surviving children as if section 40 applied to the case."1
"Child includes-
(a) an adopted child, in the case of any one whose personal law permits adoption.
(b) an illegitimate child."2
1. Para. 9.17.
2. Para. 8.20.
(38) Section 38 should be revised as recommended in the Report.1
1. Para. 8.24.
(39) With reference to sections 43-46, even where brothers and sisters of the intestate are alive, the father and mother should take the property (sharing equally) and if only one of them survives, he or she should take the whole.1
1. Para. 8.29.
(40) In regard to section 47, it should be made clear that the section does not apply unless there is at least one brother or sister alive.1
1. Para. 8.33.
(41) With reference to section 48, which provides that where the intestate has left neither lineal descendant nor parents, nor brother, nor sister, the property of the intestate shall be divided equally among relatives in the nearest degree of kindred to the deceased, an Explanation should be added to the effect that where such relatives are children or brothers or sisters of the intestate, they shall take per stirpes. Illustration (iv) to section 48 should also be revised, accordingly.1
1. Para. 8.37.
(42) Section 51 (succession to a male Parsi-division of his property among his widow, children and parents) gives to the sons double the share of the daughters. This discrimination against women should be removed.1
1. Para. 10.6.
(43) Similarly, in sections 54(d) and 55, the present provision giving males double the share of each female standing in the same degree of propinquity should be amended, so as to remove the disparity of shares based solely on sex.1
1. Para. 10.7.
(44) In section 59 (competence to make a will), the first paragraph should be revised, so as to provide that a person may, by will, dispose of not only his property, but also any property over which he has a disposing power which he can exercise by will.1
1. Para. 12.11.
(45) To section 59, the following proviso should be added:-
"Provided that any person, whatever his age may be, may, by will, revoke or alter any will appointing a guardian or guardians, for his child during minority."1
1. Para. 12.12.
(46) Explanation 1 to section 59 (power of married woman to make a will) is not intended to dispense with the requirements of capacity to make a will as prescribed in the main paragraph of the section. To make this clear, the Explanation should be revised as under:-
"Explanation 1.-A married woman, if otherwise competent to make a will, may by will dispose of any property which she could alienate by her own act during her life."1
1. Paras. 12.13 and 12.14.
(47) The law should be amended by providing that the court exercising jurisdiction under the Indian Lunacy Act, 1912, in relation to the property of a lunatic shall have power to make an order, direction or authority for the execution for the lunatic, of a will making any provision which could be made by a will executed by the lunatic if he were a person of sound mind. The amendment could be in the form of-
(a) a new section, to be inserted in the Indian Succession Act, as section 59A; or
(b) two new sections, to be inserted in the Indian Lunacy Act, 1912 as sections 49A and 71 A, intended to provide for the powers of the High Court and the district court, respectively, on the subject.1
1. Paras. 12.20 to 12.22.
(48) The right to appoint, by will, a guardian for a minor child, given by section 60 to the father, should be given to the mother also, where the father is absent or not competent to act.1 Further, it should be made clear that only a person of sound mind may appoint a guardian during the minority of the child.2
[A suitable re-draft of section 60 is suggested for the purpose]3
1. Paras. 12.26 to 12.29.
2. Paras. 12.27 and 12.28.
3. Para. 12.29.
(49) In section 61, the case of mistake of the testator should be covered, by adding, after the words "the free agency of the testator," the words "or by mistake."1
1. Para. 12.52.
(50) In section 63(a) (which deals with the formal requirements of wills), it should be made clear, by adding an Explanation, that the "other person" signing for the testator is competent to attest the will under clause (c) of the section.1
1. Paras. 13.9 and 13.21.
(51) As a consequential change, it should also be made clear that the provisions of clause (c) of section 63 are subject to those of clause (a) and of the Explanation thereto (which is to be added as above).1
1. Para. 13.23.
(52) In section 64, which deals with documents incorporated in will by reference, it should be made clear that the document must not only be actually in existence, but must be also described (in the will) as actually, in existence.1
1. Para. 13.26.
(53) Section 65 should be extended to Hindus etc. by amending the Third Schedule.1
1. Paras. 13.4 and 14.11.
(54) In Section 65, it should further be provided that a person otherwise competent to make a privileged will can do so, whether or not he has completed the age of eighteen years.1
1. Para. 14.12.
(55) A new section 65A should be inserted, to confer, on persons affected by natural calamities, the right to make a privileged will, where there is a reasonable apprehension of death.1
1. Para. 14.20.
(56) If the provisions of the Act relating to privileged wills are to be extended to persons affected by calamity (by inserting section 65A) as recommended above, section 66 will also require consequential changes.1
1. Para. 14.23.
(57) On the insertion of a new section (as recommended above) to extend the facility of "privileged wills" to persons affected by natural calamity, (proposed new section 65A) consequential changes will become necessary in section 66(2), clauses (e), (f) and (g). In these clauses, the words "soldier, sailor or airman should be replaced by the words" the person entitled to make a privileged will.1
1. Paras. 14.20 and 14.24.
(58) Section 67 should be amended by inserting the following exception in the section, before the Explanation:
"Exception-For the purposes of this section, the attestation of a will be a person to whom or to whose spouse there is given any such benefit as is described in this section shall be disregarded-
(a) Where, by means of an oral trust, a beneficial interest is conferred upon an attesting witness who at the time of attestation is unaware of the secret trust in his favour; or
(b) where the marriage to an attesting witness of a person taking a beneficial interest under the will takes place after the attestation, or
(c) where at the time of the attestation it could not be predicted that the attesting witness was person taking a beneficial interest under the will; or
(d) where the will has been witnessed by not less than two other witnesses, to whom no such benefit as is described in this section is given by the will."1
1. Para. 15.16.
(59) Section 69 should be revised as under:-
"69. (1) Every will, not being a mutual will, shall be revoked by the marriage of the maker, except a will made in exercise of a power of appointment, when the property over which the power of appointment is exercised would not, in default of such appointment, pass to his or her executor or administrator, or to the person entitled in case of intestacy.
Explanation-Where a man is invested with power to determine the disposition of property of which he is not the owner, he is said to have power to appoint such property.
Exception-A will expressed to be made in contemplation of a marriage or indicating an intention that it was so made shall not be revoked by the solemnization of the marriage contemplated; and such an intention may be inferred from any portion of the will showing that marriage was thought of
(2) Where the law of domicile of the maker of the will at the time of death has a different rule, that rule shall prevail, and the provisions of subsection (1) shall not apply to the extent to which there is inconsistency between the two."1
1. Para. 15.23.
(60) Specific provision (proposed section 69A) to deal with the effect of divorce or annulment of marriage, on wills should be inserted, on the lines recommended in the Report.1
1. Para. 15.32.
(61) If, as recommended above (under section 69), the case of effect of divorce or annulment of marriage is added in the Act, it will also be necessary to amend section 70, by adding, after the word "marriage", the words "or dissolution or annulment of marriage."1
1. Para. 15.34.
(62) The following new section is recommended to be inserted as section 70A:-
"70A. Where, after the execution of the will by a Hindu testator who has, in the will, purported to deal with coparcenary property, a son is born to that testator, the will shall stand revoked as regards all property, unless the will contains an express provision indicating a contrary intention."1
1. Para. 15.38.
(63) The present structure of section 72 being complicated, its main paragraph should be restructured, as recommended in the Report.1
1. Para. 15.41.
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