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Report No. 110

The Indian Succession Act, 1925

Contents
Chapter I Introduction
I. The Law of Succession
II. Justification for Review
Chapter 2 Historical
I. Origin of Succession
II. Wills in Roman Law
III. Wills in other Countries During Ancient Times
IV. Wills in Hindu and Muslim Law
V. History of the Statutory Law of Succession in India
VI. Parsis
Chapter 3 Preliminary (Sections 1 to 3)
I. Title and Definitions
II. New Definitions to be Inserted
III. Existing definition
IV. Exempted Persons
Chapter 4 Conflict of Laws1 (Section 3A et seq)
I. Section 5-Placing
II. Formalities in Respect of Wills
III. Legislation in England as to Formalities
IV. Recommendation as to New Sections
V. Other Aspects of Conflict of Laws
Chapter 5 Domicile (Sections 4 to 19)
I. Importance of the Concept of Domicile, and its Meaning
II. Domicile in the Scheme of the Act'
III. Section 4
IV. The Choice of Law: Section 5
V. Choice as to National Law
VI. Domicile of Origin
VII. Domicile of Child at Birth
VIII. Acquisition of Domicile
IX. Acquisition of Domicile
X. Domicile of Dependence of Minors
XI. Minor without Parent
XII. Marriage
XIII. Unmarried Women and Widows
XIV. Continuance of Domicile of Minor
XV. Insane Persons
XVI. Domicile-Uncertainty of
XVII. Applicable Law, and Proof of Foreign Law
Chapter 6 Marriage (Sections 20 to 22)
Scope of the Chapter and rule at common law
Relationship with legislation relating to married women's property
Sections 20,21
Sections 20-21-significance
Application of sections 20-21 illustrated
No change proposed in the section
Right to be given to mother also
Chapter 7 Consanguinity (Sections 23 to 28)
Sections 23-28.
Section 23-Application of Part
Section 25-lineal consanguinity
Section 26-Collateral consanguinity
Section 28-Mode of computing of degrees of kindered
Chapter 8 Intestate Succession: Preliminary (Sections 29-30)
Introductory (sections 29 and 30)
Section 29-Scope
Controversy on two points under sub-section (2)
Travancore Christian Succession Regulation-Conflict of decisions as to its subsistence
Madras case of 1974
Travancore case of 1957
Madras view
Dr. Derrett's comment
Inconvenience
Need for amendment
Customary law
Recommendation as to section 29 and the Travancore Regulation
Section 30
Chapter 9 Rules in Cases of Intestates other than Parsis (Sections 31 to 49)
I. Preliminary
II. Order of Succession where Spouse Survives
III. Where Spouse does not Survive
IV. No Lineal Descendants
Chapter 10 Special Rules for Parsi Intestates (Sections 50 to 56)
Scope
Points of difference (males and females)
Basic sociological factors
Amendment of 1939
Section 51
Recommendation to amend section 51
Recommendation to amend sections 5 and 55
Section 56
Chapter 11 Testamentary Succession-introductory (Sections 57 and 58)
Scope
Section 57
Section 58
Chapter 12 Wills and Codicils (Sections 59-62)
I. Introductory
II. Scheme of Sections 59-62
IV. Persons Mentally Incompetent
V. Guardian Appointed by
VI. Flaws in a Will Affecting the Reality of Consent
VII. Mistake
VIII. Ambulatory Character of a Will
Chapter 13 Execution of Unprivileged Wills (Sections 63-64)
I. Persons Entitled to Execute Unprivileged Wills
II. Persons Entitled to Make Privileged Wills
III. Formalities-Signature
IV. Attestation
V. Incorporation by Reference
Chapter 14 Privileged Wills (Sections 65-66)
I. Privilege: Justification
II. History
III. Privileged Wills in India-Applicability to Hindus
IV. Persons Involved in Calamities-Proposed New Section
V. The Formalities
Chapter 15 Attestation, Revocation (Including Effects of Subsequent Events), Alteration and Revival of Wills (Sections 67-73)
I. Attestation
II. Executor as Witness
III. Revocation by Subsequent Events: Section 69
IV. Effect of Divorce
VI. Act of Revocation by 'Testator
VII. Alteration
VIII. Revocation of Privileged Wills
IX. Rectification
X. Revival of Will
Chapter 16 Construction of Wills (Sections 74 to 111)
I. Introduction
II. Ascertaining the Intention
III. Mistake, Misdescriptions and Omissions-External Reality
IV. Construction of Words and Clauses
V. Deficiencies and Vagueness
VI. Application of Description to External Reality
VII. Quantum of Interest
VIII. Bequest to a Class
IX. Rules of Construction
XI. Position in common law of illegitimate children
XII. Residuary Legatee
XIII. Time of Vesting of Legacies
XV. Joint Legacies and Distinct Legacies
XVI. Effect of Lapse and Analogous Situations
Chapter 17 Void Bequests (Sections 112 to 118)
Scope
Section 112-Bequests to person by particular description who is not in existence at testators death
Section 113-Bequest to person not in existence at testator's death subject to prior •equest
Recommendation in the Law Commission Report on the Transfer of Property Act
Discussion in earlier Report
Recommendation in earlier Report (T.P. Act)
Recommendation as to section 113, Succession Act
Recommendation made in Report on Transfer of Property Act
Section 115
Section 117-Effect of direction for accumulation
Section 118
History of Law in England
Section inconsistent with social notions
Case for deleting section 118, and alternatives put in the Working Paper
Section 118-'nearest relative'
Views on the Working Paper, and recommendation
Section 118A-Provision in regard to charities
Chapter 18 Vesting of Legacies (Sections 119 to 121)
Sections 119 to 121
Sections 119,120
Section 120, Exception
Recommendation
Chapter 19 Onerous Bequests (Sections 122 and 123)
Sections 112-Onerous Bequests.
Principle analogous to election
Section 123-One of two separate and independent bequests to same person may be accepted, and other refused
Chapter 20 Contingent Bequests (Sections 124 and 125)
I. Introductory
Chapter 21 Conditional Bequests (Sections 126-137)
I. Introductory
II. Void Bequests
III. Successive Bequests
IV. Bequests Ceasing to have Effect
V. Conditions Subsequent
Chapter 22 Bequests with Directions as to Application or Enjoyment (Sections 138 to 140)
Scope
Sections 138,139
Illustration
Section 140-Bequest of fund for certain purposes, some of which cannot be fulfilled
Recommendation to amend sections 138-140
Chapter 23 Bequests to an Executor (Section 141)
Section 141
Rationale
Indian section preemptory
Chapter 24 Specific Legacies (Sections 142 to 149)
Specific Legacies
Section 142-Specific legacy
Section 143-Bequest of certain sum where stocks etc., in which invested are described
Sections 144,145
Section 146-Residuary bequest with enumeration
Section 148
Chapter 25 Demonstrative Legacies (Sections 150-151)
Scope
Section 150-Demonstrative legacy defined
Section 151-Order of payment when legacy directed to be paid out of fund, the subject of specific legacy
Chapter 26 Ademption (Sections 152 to 266)
I. Introductory
II. A Demption
III. Ademption of Part of Bequest
IV. Stock
V. Receipt by Testator
VI. Change in the Thing Bequeathed by Operation of Law
Chapter 27 Payment of Liabilities in Respect of The Subject of a Bequest (Sections 167 to 170)
Scope
Section 168-Completion of testator's title to thing bequeathed to be a cost of his estate
Liability for tax
Section 170-calls on shares
Defect in the terminology of section 170
Decision of House of Lords as to meaning of 'stock'
Recommendation as to section 170
Chapter 28 Bequests of Things Described in General Terms (Sections 171 and 172)
Scope
Section 172
Recommendation to amend section 172
Chapter 29 Bequests of Annuities (Sections 173 to 196)
Scope
Inconsistency
Recommendation to revise sections 173-174
Section 175-abatement of annuity
Chapter 30 Legacies to Creditors and Portioners (Sections 177 to 179)
Scope of the chapter and departure from English law
Rule of "satisfaction" in England
Departure from English law deliberate
Sections 177 & 178-Need for specific rule as to bequest to debtor
Chapter 31 Election (Sections 180 to 190)
I. Principle of Election
II. Juristic Basis
III. Emphasis on Intention Misplaced
IV. Effect of Election
Chapter 32 Gifts in Contemplation of Death (Section 191)
Scope
Nature and Origin
English law as to donations mortis causa
Delivery of document
Hindu Law, as to gifts in contemplation of death
Calcutta case
Recommendation to extend section 191 to Hindus etc
Chapter 33 Protection of Property of Deceased (Sections 192 to 210)
Scope
Section 192-Person claiming right by succession to property of deceased may apply for relief against wrongful possession
Recommendation to amend section 192
Sections 194,195
Section 196-Powers conferable on curator
Curator to give security and may receive remuneration
Section 200-Suits by curators
Recommendation to clarify the position as to succession certificate
Sections 201 to 203
Section 204-Bar to appointment of second curator for same property
Section 205
Sections 207 to 210
Chapter 34 Representative Title to the Property of the Deceased on Succession (Sections 211 to 216)
I. Introductory
II. Survivorship and the Question of Shares
III. Establishment of Right to Property of Deceased
IV. Debts-need for Succession Certificate
VI. Scope of the Expression "Debt"
VII. State for Obtaining Succession Certificate
VIII. Joint Decrees
IX. Continuation of Proceedings
X. Mortgage Decrees
XI. Recommendation as to Section 214
XII. Miscellaneous
Chapter 35 Probate, Letters of Administration and Administration of Assets of the Deceased (Sections 217-236)
Scope
Joint family property passing by survivorship
Recommendation to amend section 218
Section 219
Recommendation to amend section 219(a), Illustration (ii)
Section 220-Effect of letters of administration
Section 222
Section 222A (proposed)-Unfit executor
Present position criticized
Power to be given
Non-commercial corporations
Law in England
Need to amend the section
Recommendation to revise section 223
Sections 225 to 228
Question to be considered-absent executor
Points of difference between Allahabad and Madras view summarized
Recommendation for amending section 241
Section 232
Sections 233 to 236
Recommendation
Chapter 36 Limited Grants: Sections 237 to 260
Limited grants
I. Grants Limited in Duration
II. Grants for the Benefit of Others
III. Grant for Special Purposes
IV. Grants of the Rest
V. Grants of Effects Unadministered
Chapter 37 Alteration and Revocation of Grants (Sections 261-263)
Scope
Section 263-Revocation or annulment for just cause
Chapter 38 Practice in Granting and Revoking Probates and Letters of Administration (Sections 264 to 302)
Scope
I. Jurisdiction and Connected Matters
II. The Petition and Immediate Steps Thereon
IV. Disposal of Petition
V. Grant of Probate
VI. Miscellaneous
Chapter 39 Executors of their own Wrong (Sections 303 and 304)
Sections 303 and 304
Chapter 40 Powers of an Executor or Administrator (Sections 305 to 315)
I. Preliminary
II. Survival of Causes of Action
III. Disposal of Property
Chapter 41 Duties of an Executor or Administrator (Sections 316 to 331)
I. Introductory
II. Funeral Expenses
III. Inventory
State Government to amend section 317
V. Legacies
Chapter 42 Assent to a Legacy by Executor or Administrator (Sections 332 to 337)
Scheme of the sections
Scheme of the sections
Want of assent-Recommendation
Section 333-Assent to a specific bequest
Section 334
Section 335-Assent of executor to his own legacy
Section 336-Effect of executor's assent
Chapter 43 Payment and Apportionment of Annuities (Sections 338 to 340)
Sections 338 to 340
Chapter 44 Investment of Funds to Provide for Legacies (Sections 341 to 348)
Scope
Section 343-lerocedure when no fund charged with, or appropriated to annuity
Section 46
Chapter 45 Produce and Interest of Legacies (Sections 349 to 355)
Scope
Section 349-Legatee's title to produce of specific legacy
Section 350-Residuary legatee's title to produce of residuary fund
Section 351-Interest when no time fixed for payment of general legacy
Section 351-Second Exception-origin
Position of spouse-Recommendations
Section 353-Rate of Interest
Section 354-No interest for first year
Chapter 46 Refund of Legacies (Sections 356 to 367)
I. Preliminary
II. Refund
III. Distribution
IV. Transfer of Assets to Foreign Executor or Administrator
Chapter 47 Liability of an Executor or Administrator for Devastation (Sections 368 and 369)
Liability of an Executor or Administrator for Devastation
Chapter 48 Succession Certificates (Sections 370 to 390)
I. Preliminary
II. Succession Certificates-grant of
III. Jurisdiction
IV. Procedure
V. Form and Contents
VII Effect of Certificate
VIII. Revocation
IX. Miscellaneous
Chapter 49 Succession by Homicide (Section 390A)
I. Introductory
II. Hindu Law and Muslim Law
III. Common Law
IV. Law in Certain other Countries
V. Need for Provision in The Indian Succession Act
VI. Recommendation
Chapter 50 Miscellaneous Provisions and Schedules
Section 391
Scope-First Schedule
Chapter 51 Summary of Recommendations
Preliminary
Intestates other than Parsis: Sections 31 to 49
Revised section 37
Construction of Wills: Sections 74-111
Bequests with Directions etc.: Sections 138-144
Payment of Liability in Respect of Subject of Bequest: Sections 167-172
Legacies to Creditors and Portioners
Election: Sections 180-190
Gifts in Contemplation of Death: Section 191
Representative Title of the Deceased: Sections 211 to 216
Practice in Granting and Revoking Probate etc.: Sections 264, 302
Succession Certificates: Sections 370 to 390
Succession by Homicide (Proposed Section 390A)
Miscellaneous Provisions (Section 391) and Schedules


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