The Succession Act, 1925 ACT NO. XXXIX OF 1925
30th September. 1925
An Act to consolidate
the law applicable to intestate and testamentary succession Pakistan.
WHEREAS it is
expedient to consolidate the law applicable. to intestate and testamentary
succession in Pakistan
It is hereby enacted as follows : —
PART – I
Preliminary
1.Short title, extent and application. This Act may be
called the Success ion Act, 1925.
2.Definitions. In this Act, unless there is anything
repugnant in the subject or context, —
(a) "administrator" means a person appointed by
competent authority to administrator the estate of a deceased person when there
is no executor ;
(b) " codicil" means an instrument made in
relation to a will and explaining, altering or adding to its dispositions, and
shall be deemed to form part of the will ;
(bb) " District Judge " means the Judge of a principal
Civil Court of original jurisdiction ;
(c) " executor " means a person to whom the
execution of the last will of a deceased person is, by the testators
appointment, confided ;
(d) "Pakistan Christian" means a citizen of
Pakistan who is, or in good faith claims to be, of
unmixed Asiatic descent and who professes any form of the
Christian religion ;
(e) "minor" means any person subject to the
"Majority Act, 1875, who has not attained his majority within the meaning
of that Act, and any other person who has not completed the age of eighteen
years ; and " minority " means the status of any such person ;
(f)" probate " means the copy of a will certified
under the seal of a Court of competent jurisdiction with a grant of
administration to the estate of the testator ;
(g)" province " includes any division of Pakistan
having a Court of the last resort ; and
(h)"will" means the legal declaration of the
intention of a testator with respect to his property which he desires to be
carried into effect after his death.
3. Power of Provincial Government to exempt any race, sect
or tribe in the Province from operation of Act. — (1) The Provincial Government
may, by notification in the official Gazette, either retrospectively from the
sixteenth day of March, 1865, or prospectively, exempt from the operation of
any of the following provisions of this Act, namely, sections 5 to 49, 58 to
191, 212, 213 and 215 to 369, the members of any race, sect or tribe in the
Province, or of any part of such race, sect or tribe, to whom the Provincial
Government considers it impossible or inexpedient to apply such provisions or
any of them mentioned in the order.
(2)The Provincial Government may, by-a like notification,
revoke any such order, but not so that the revocation shall have retrospective
effect.
(3)Persons exempted under this section or exempted from the
operation of any of the provisions of the Indian Succession Act, 18652, under
section 332 of that Act are in this Act referred to as "exempted
persons". :
PART II
Of Domicile
4.Application of Part. This Part shall not apply if the
deceased was a Hindu, Muslim, Buddhist, Sikh or Jaina.
5.Law regulating succession to deceased persons immoveable
and moveable property, respectively. — (1) Succession to the immoveable
property in Pakistan of a person deceased shall be regulated by the law of
Pakistan, wherever such person may have had his domicile at the time of his
death.
(2) Succession to the moveable property of a person deceased
is regulated by the law of the country in which such person had his domicile at
the time of his death.
Illustrations
(i) A, having his domicile in -Pakistan dies in France,
leaving moveable property in France, moveable property in England, and
property, both moveable and immoveable, in Pakistan. The succession to the
whole is regulated by the law of Pakistan.
(ii) A, an Englishman, having his domicile in France, dies
in Pakistan, and leaves property, both moveable and immoveable, in Pakistan.
The succession to the moveable property is regulated by the rules which govern,
in France, the succession to the moveable property of an Englishman dying
domiciled in France, and the succession to the immoveable property is regulated
by the law of Pakistan.
Court Decisions
Christian succession—Succession to movable and immovable
property of any intestate in Pakistan is governed under the laws in Pakistan in
terms of S. 5 of the Succession Act, 1925—Property in case of Christian
succession devolves upon surviving spouses or upon those who are kindred in
ascending or descending order to the intestate. PLD 2003 Kar.
270
Adoption neither under "Islamic Law" nor
"Christian Law" creates any kindred relationship between adopted
child and adoptive parent—No legal rights or obligations flow from either side,
thus, none could be claimed or enforced—Succession to estate of intestate
Pakistani is
regulated by S. 5 of the Succession Act, 1925. PLD 2003 Kar.
270
Adopted child of Christian parent domiciled in
Pakistan—Succession and inheritance rights— Discussed. PLD 2003 Kar. 270
6.One domicile only affects succession to moveables. A
person can have only one domicile for the purpose of the succession to his
moveable property.
7.domicile only affects succession to moveables. The
domicile of origin of every person of legitimate birth is in the country in
which at the time of his birth his father was domiciled ; or, if he is a
posthumous child, in the country in which his father was domiciled at the time
of the fathers death.
Illustration
At the time of the birth of A, his father was domiciled in
England. As domicile of origin is in England, whatever may be the country in
which he was born.
8.Domicile of origin of illegitimate child. The domicile of
origin of an illegitimate child is in the country in which, at the time of his
birth, his mother was domiciled.
9.Continuance of domicile of origin. The domicile of origin
prevails until a new domicile has been acquired.
10.Acquisition of new domicile. A man acquires a new
domicile by taking up his fixed habitation in a country which is not that of his
domicile of origin.
Explanation. —A man is not to be deemed to have taken up his
fixed habitation in Pakistan merely by reason of his residing therein the
civil, military, naval or air force service of Pakistan or in the exercise of
any profession or calling.
Illustrations
(i) A, whose domicile of origin is in England, proceeds to
Pakistan, where he settles as a barrister or a merchant, intending to reside
there during the remainder of his life. His domicile is now in Pakistan.
(ii) A, whose domicile is in England, goes to Austria, and
enters the Austrian service, intending to remain in that service. A has
acquired a domicile in Austria.
(iii) A, whose domicile of origin is in France, comes to
reside in Pakistan under an engagement with the Federal Government for a
certain number of years. It is his intention to return to France a the end of
that period. He does not acquire a domicile in Pakistan. (iv) A, whose domicile
is in England, goes to reside in iPakistan for the purpose of winding up the
affairs of a partnership which has been dissolved, and with the intention of
returning to England as soon as that purpose is accomplished. He does not by
such residence acquire a domicile in Pakistan, however long the residence may
last.
(v) A, having gone to reside in Pakistan in the
circumstances mentioned in the last preceding illustration, afterwards alters
his intention, and takes up his fixed habitation in Pakistan. A has acquired a
domicile in Pakistan.
(vi) A, whose domicile is in the French Settlement of Chandernagore,
is compelled by political events to take refuge in Peshawar, and resides in
Peshawar for many years in the hope of such political changes as may enable him
to return with safety to Chandernagore. He does not by such residence acquire a
domicile in Pakistan.
(vii) A, having come to 1 Peshawar in the circumstances
stated in the last preceding illustration, continues to reside there after such
political changes have occurred as would enable him to return with safety to
Chandernagore, and he intends that his residence in Peshawar shall be
permanent. A has acquired a domicile in Pakistan.
11.Special mode of acquiring domicile in Pakistan. Any
person may acquire a domicile in Pakistan, by making and depositing in some
office in Pakistan, appointed in this behalf by the Provincial Government, a
declaration in writing under his hand of his desire to acquire such domicile ;
Provided that he has been resident in Pakistan for one year
immediately preceding the time of his making such declaration.
12.Domicile not acquired by residence as representative of
foreign Government, or as part of this family. A person who is appointed by the
Government of one country to be its ambassador, consul or other representative
in another country does not acquire a domicile in the latter country by reason
only of residing there in pursuance of his appointment ; nor does any other
person acquire such domicile by reason only of residing with such
first-mentioned person as part of his family, or as a servant.
13.Continuance of new domicile. A new domicile continues
until the former domicile has been resumed or another has been acquired.
14.Minors domicile. The domicile of a minor follows the
domicile of the parent from whom he derived his domicile of origin.
Exception. —The domicile of a minor does not change with
that of his parent, if the minor is married, or holds any office or employment
in the service of the State, or has set up, with the consent of the parent, in
any distinct business.
15.Domicile acquired by woman on marriage. By marriage a
woman acquires the domicile of her husband, if she had not the same domicile
before.
16.Wife’s domicile during marriage. A wife’s domicile during
her marriage follows the domicile of her husband.
Exception. —The wife’s domicile no longer follows that of
her husband if they are separated by the sentence of a competent Court, or if
the husband is undergoing a sentence of transportation.
17.Minors acquisition of new domicile. Save as hereinbefore
otherwise provided in this Part, a person cannot, during minority, acquire a
new domicile.
18.Lunatics acquisition of new domicile. An insane person
cannot acquire a new domicile in any other way than by his domicile following
the domicile of another person.
19.Succession to moveable property in Pakistan, in absence
of proof domicile elsewhere. If a person dies leaving moveable property in
Pakistan, in the absence of proof of any domicile elsewhere, succession to the
property is regulated by the law of Pakistan.
PART III
Marriage
20. Interests and powers not acquired not lost by marriage.
— (1) No person shall, by marriage, acquire any interest in the property of the
person whom he or she marries or become incapable of doing any act in respect
of his or her own property which he or she could have done if unmarried.
(2) This section —
(a)shall not apply to any marriage contracted before the
first day of January, 1866 ;
(b)shall not apply, and shall be deemed never to have
applied, to any marriage one or both
of the parties to which professed at the time of the
marriage the Hindu, Muslim, Buddhist, Sikh or Jaina religion.
21.Effect of marriage between person domiciled and one not
domiciled in Pakistan. If a person whose domicile is not in Pakistan marries in
Pakistan, a person whose domicile is in Pakistan, neither party acquires by the
marriage any rights in respect of any property of the other party not comprised
in a settlement made previous to the marriage, which he or shall would not
acquire thereby if both were domiciled in Pakistan at the time of the marriage.
22.Settlement of minors property in contemplation of
marriage. — (1) The property of a minor may be settled in contemplation of
marriage, provided the settlement is made by the minor with the approbation of
the minors father, or, if the father is dead or absent from Pakistan, with the
approbation of the High Court.
(2) Nothing in this section or in section 21 shall apply to
any will made or intestacy occurring before the first day of January, 1866, or
to intestate or testamentary succession to the property of any Hindu, Muslim,
Buddhist, Sikh or Jaina.
PART IV
Of Consanguinity
23.Application of Part. Nothing in this Part shall apply to
any will made or intestacy occurring before the first day of January, 1866, or
to intestate or testamentary succession to the property of any Hindu, Muslim,
Buddhist, Sikh, Jaina or Parsi.
Christian succession—Succession to movable and immovable
property of any intestate in Pakistan is governed under the laws in Pakistan in
terms of S. 5 of the Succession Act, 1925—Property in case of Christian
succession devolves upon surviving spouses or upon those who are kindred in
ascending or descending order to the intestate. PLD 2003 Kar.
24.Kindred or consanguinity. Kindred or consanguinity is the
connection or relation of persons descended from the same stock or common
ancestor.
Property in case of Christian succession devolves upon
surviving spouses or upon those who are kindred in ascending or descending
order to the intestate. PLD 2003 Kar. 270
25.Lineal consanguinity. — (1) Lineal consanguinity is that
which subsists between two persons, one of whom is descended in a direct line
from the other, as between a man and Ins father, grandfather and
great-grandfather, and so upwards in the direct ascending line ; or between a
man and his son, grandson, great-grandson and so downwards in the direct
descending line.
(2) Every generation constitutes a degree, either a sending
or descending.
(3) A persons father is related to him in the first degree,
and so likewise is his son ; his grandfather and grandson in the second degree
; his great-grandfather and great-grandson in the third degree, and so on.
26.Collateral Consanguinity. — (1) Collateral consanguinity
is that which subsists between two persons who are descended from the same
stock or ancestor, but neither of whom is descended in a direct line from the
other.
(2) For the purpose of ascertaining in what degree of
kindred any collateral relative stands to a person deceased, it is necessary to
reckon upwards from the person deceased to the common stock and then downwards
to the collateral relative, a degree being allowed for each person, both
ascending and descending.
27.Persons held for purpose of succession to be similarly
related to deceased. For the purpose of succession, there is no distinction —
(a) between those who are related to a person deceased
through his father, and those who are related to him through his mother ; or
(b) between those who are related to a person deceased by
the full blood, and those who are related to him by the half blood ; or
(c) between those who were actually born in the lifetime of
a person deceased and those who at the date of his death were only conceived in
the womb, but who have been subsequently born alive.
28.Mode of computing of degrees of kindred. Degrees of
kindred are computed in the manner set forth in the table of kindred set out in
Schedule I.
Illustrations
(i) The person whose relatives are to be reckoned, and his
cousingerman, or first cousin, are, as shown in the table, related in the fourth
degree ; there being one degree of ascent to the father and another to the
common ancestor, the grandfather ; and from him one of descent to the uncle,
and another to the cousingerman, making in all four degrees.
(ii) A grandson of the brother and a son of the uncle, i.e.,
a great nephew and a cousingerman, are in equal degree being each four degrees
removed.
(iii) A grandson of a cousingerman is in the same degree as
the grandson of a great-uncle, for they are both in the sixth degree of
kindred.
PART V
Intestate Succession
CHAPTER I,
PRELIMINARY
29.Application of Part. — (1) This Part shall not apply to
any intestacy occurring before the first day of January, 1866, or to the
property of any Hindu Muslim, Buddhist, Sikh or Jaina.
(2) Save as provided in sub-section (1) or by any other law
for the time being in force, the provisions of this Part shall constitute the
law of Pakistan in all cases of intestacy.
Adopted child of Christian parent domiciled in
Pakistan—Succession and inheritance rights— Discussed. PLD 2003 Kar. 270
30.As to what property deceased considered to have died,
intestate. A person is deemed to die intestate in respect of all property of
which he has not made a testamentary disposition which is capable of taking
effect.
Illustrations
(i) A has left no will. He has died intestate in respect of
the whole of his property.
(ii) A has left a will, whereby he has appointed B his
executor ; but the will contains no other provisions. A has died intestate in
respect of the distribution of his property.
(iii) A has bequeathed his whole property for an illegal
purpose. A has died intestate in respect of the distribution of his property.
(iv) A has bequeathed 1,000 rupees to B and 1,000 rupees to
the eldest son of C, and has made no other bequest ; and has died leaving the
sum of 2,000 rupees and no other property. C. died before A without having ever
had a son. A has died intestate in respect of the distribution of 1,000 rupees.
CHAPTER II
RULES IN CASE OF INTESTATES OTHER THAN PARSIS
31.Chapter not to apply to Parsis. Nothing in this Chapter
shall apply to Parsis.
32.Devolution of such property. The property of an intestate
devolves upon the wife or
husband, or upon those who are of the kindred of the
deceased, in the order and according to the rules hereinafter contained in this
Chapter.
Explanation. — A widow is not entitled to the provision
hereby made for her if, by a valid contract made before her marriage, she has
been excluded from her distributive share of her husbands estate.
33. Where intestate has left widow and lineal descendants,
or widow and kindred only, or widow and no kindred. Where the intestate has
left a widow —
(a)if he has also left any lineal descendants, one-third of
his property shall belong to his widow, and the remaining two-thirds shall go
to his lineal descendants, according to the rules hereinafter contained ;
(b)save as provided by section 33A, if he has left no lineal
descendant, but has left persons who are of kindred to him, one-half of his
property shall belong to his widow, and the other half shall go to those who
are of kindred to him, in the order and according to the rules hereinafter
contained
(c)if he has left none who are of kindred to him the whole
of his property shall belong to his widow.
33A. Special provision where intestate has left widow and no
lineal descendants.
— (1) Where the intestate has left a widow but no lineal
descendants and the net value of his property does not exceed five thousand
rupees, the whole of his property shall belong to the widow.
(2)Where the net value of the property exceeds the Sum of
five thousand rupees, the widow shall be entitled to five thousand rupees
thereof and shall have a charge upon the whole of such property for such sum of
five thousand rupees, with interest thereon from the date of the death of the
intestate at 4 per cent per annum until payment.
(3)The provision for the widow made by this section shall be
in addition and without prejudice to her interest and share in the residue of
the estate of such intestate remaining after payment of the said sum of five
thousand rupees, with interest as aforesaid, and such residue shall be
distributed in accordance with the provisions of section 33 as if it were the
whole of such intestates property.
(4)The net value of the property shall be ascertained by
deducting from the gross value thereof all debts, and all funeral and
administration expenses of the intestate, and all other lawful liabilities and
charges to which the property shall be subject.
(5)This section shall not apply —
(a)to the property of —
(i)any Pakistan Christian,
(ii)any child or grandchild of any male person who is or was
at the time of his death a Pakistan Christian, or
(iii)any person professing the Hindu, Buddhist, Sikh or
Jaina religion the succession to whose property is, under section 24 of the
Special Marriage Act, 1872, regulated by the provisions of this Act;
(b)unless the deceased dies intestate in respect of all his
property.
34.Where intestate has left no widow, and where he has left
no kindred. Where the intestate has left no widow, his property shall go to his
lineal descendants or to those who are of kindred to him, not being lineal
descendants, according to the rules hereinafter contained ; and, if he has left
none who are of kindred to him, it shall go to the Government.
35.Rights of widower. A husband surviving his wife has the
same rights in respect of her
property, if she dies intestate, as a widow has in respect
of her husbands property, if he dies intestate.
Distribution where there are lineal descendants
36.Rules of distribution. The rules for the distribution of
the intestates property (after deducting the widows share, if he has left a
widow) amongst his lineal descendants shall be those contained in section 37 to
40.
37.Where intestate has left child or children only. Where
the intestate has left surviving him a child or children, but no more remote
lineal descendant through a deceased child, the property shall belong to his
surviving child, if there is only one, or shall be equally divided among all
his surviving children.
38.Where intestate has left so child, but grand-child or
grand children. Where the intestate has not left surviving him any child, but
has left a grandchild or grandchildren and no more remote descendant through a
deceased grandchild, the property shall belong to his surviving grandchild if
there is only one, or shall be equally divided among all his surviving
grandchildren.
Illustrations
(i) A has three children, and no more, John, Mary, and
Henry. They all die before the father, John leaving two children, Mary three,
and Henry four. Afterwards A dies intestate, leaving those nine grandchildren
and no descendant of any deceased grandchild. Each of his grandchildren will
have one-ninth.
(ii) But if Henry has died, leaving no child, then the whole
is equally divided between the intestates five grandchildren, the children of
John and Mary.
39.Where intestate has left only great grand children or
remoter lineal descendants. In like manner the property shall go to the
surviving lineal descendants who are nearest in degree to the intestate, where
they are all in the degree of great- grandchildren to him, or are all in a more
remote degree.
40.Where intestate leaves lineal descendants not all in same
degree of kindred to him, and those through whom the more remote are descended
are dead. — (l) If the intestate has left lineal descendants who do not all
stand in the same degree of kindred to him, and the persons through whom the
more remote are descended from him are dead, the property shall be divided into
such a number of equal shares as may correspond with the number of the lineal
descendants of the intestate who either stood in the nearest degree of kindred
to him at his decease, or, having been of the like degree of kindred to him,
died before him, leaving lineal descendants who survived him.
(2) One of such shares shall be allotted to each of the
lineal descendants who stood in the nearest degree of kindred to the intestate
at his decease :,and. one of such shares shall be allotted in respect of each
of such deceased lineal descendants : and the share allotted in respect of each
of such deceased lineal descendants shall belong to his surviving child or
children or more remote lineal descendants, as the case may be : such surviving
child or children or more remote lineal descendants always taking the share
which his or their parent or parents would have been entitled to respectively
if such parent or parents had survived the intestate.
Illustrations.
(i) A had three children, John. Mary and Henry John died,
leaving four children, and Mary died, leaving one, and Henery" alons
survived the father. On the death of A, intestate, one- third is allotted to
Henry, one-third to Johns four children and the remaining third to Marys
one child.
(ii)A left no child, hut left eight grandchildren, and two
children of a deceased grandchild. The properly is divided into nine parts, one
of which is allotted to each grandchild, and the remaining one-ninth is equally
divided between the two great-grandchildren.
(iii)A has three children, John, Mary and Henry ; John dies
leaving four children : and one of Johns children dies leaving two children.
Mary dies leaving one child. A afterwards dies intestate. One-third of his
property is allotted to Henry, one-third to Marys child, and one- third is
divided into four parts, one of which is allotted to each of Johns three
surviving children, and the remaining part is equally divided between Johns two
great-children.
(iv)A has two children, and no more ; John and Mary. John
dies before his father, leaving his wife pregnant Then A dies leaving Mary
surviving him, and in due time a child of John is born. As property is, to be
equally divided between Mary and the posthumous child. Distribution where there
are no lineal descendants
41.Rules of distribution where intestate has left no lineal
descendants. Where an intestate has left no lineal descendants, the rules for
the distribution of his property (after deducting -de widows share, if he has
left a widow) shall be those contained in sections 42 to 48.
42.Where intestates father living. If the intestates father
is living, he shall succeed to the property.
43.Where intestates father dead but his mother, brothers and
sisters living. If the intestates father is dead, but the intestates mother is
living and there are also brothers or sisters of the intestate living, and
there is no child living of a any deceased brother or sister, the mother and
each living brother or sister shall succeed to the property in equal shares. A
dies intestate survived by his mother and two brothers of the full blood, John
and Henry, and a sister Mary, who is the daughter of his mother but not of his
father. The mother takes one-fourth, each brother sakes one-fourth and Mary,
the sister of half blood, takes one- fourth.
Illustration
A dies intestate survived by his mother and two brothers of
the full blood, john and Henry, and a sister Mary, who is the daughter of his
mother but not of his father. The mother takes one-fourth, each brother takes
one –fourth and Mary, the sister of half blood, takes one- fourth.
44.Where intestates father dead and his mother, a bothers
and sisters living. If the intestates father is dead, but the intestates mother
is living, and if any brother or sister and the child or children of any
brother or sister who may have died in the intestates life time are also living
then the mother and each living brother or sister, and the living child or
children of each deceased brother or sister, shall be entitled to the property
in equal shares, such children (if move than one) taking in equal shares only
the shares which their respective parents would have taken if living at the
intestates death.
Illustration
A, the intestate, leaves his mother, his brothers John and
Henry, and also one child of a deceased sister, Mary, and two children of
George, a deceased brother of the half blood who was the son of his father but
not of his mother. The mother takes one-fifth, John and Henry each takes
one-fifth, the child of Mary takes one-fifth, and the two children of George
divids the remaining one-fifth equally between them.
45. Where intestates father dead and his mother and children
of any deceased
brother or sister living. If the intestates father is dead,
but the intestates mother is living, and the brothers and sisters are all dead,
but all or any of them have left children who survived the intestate, the
mother and the child or children of each deceased brother or sister shall be
entitled to the property in equal share, such children (if more than one)
taking in equal shares only the shares which their respective parents would
have taken if living at the intestates death.
Illustration
A, the intestate, leaves no brother or sister, but leaves
his mother and one child of a deceased sister, Mary, and two children of a
deceased brother, George. The mother takes one-third, the child of Mary takes
one-third, and the children of George divide the remaining one-third equally
between them.
46.Where intestates father dead, but his mother living and
no brother, sister, nephew or nice. If the intestates father is dead, but the
intestates mother is living, and there is neither brother, nor sister, nor
child of any brother or sister of (he intestate, the property shall belong to
the mother.
47.Where intestate has left neither lineal descendant, nor
father, nor mother.
Where the intestate has left neither lineal descendant, nor
father, nor mother, the property shall be divided equally between his brothers
and sisters and the child or children, of shall of them as may have died before
him, such children (if .more than one) taking in equal shares only the shares
which their respective parents would have taken if living at the intestates
death.
48.Where intestate has left neither lineal descendant, nor
parent, nor brother, nor sister. Where the intestate has left neither lineal
descendant, nor parent, nor brother, nor sister, his property shall be divided
equally among those of his relatives who are in the nearest degree of kindred
to him.
Illustrations
(i) A, the intestate, has left a grandfather, and a
grandmother and no other relative standing In the same or a nearer degree of
kindred to him: They, being in the second degree, will be entitled to the
property in equal shares exclusive of any uncle or aunt of the intestate,
uncles and aunts being only in the third degree.
(ii) A, the intestate, has left a great-grandfather, or a
great-grandmother, and uncles and aunts, and no other relative standing in the
same or a nearer degree of kindred to him. All of these being in the third
degree will take equal shares.
(iii) A, the intestate, left a great-grandfather, an uncle
and a nephew, but no relative standing in a nearer degree of kindred to him.
All of these being in the third degree will take equal shares.
(iv) Ten children of one brother or sister of the intestate,
and one child of another brother or sister of the intestate, constitute the
class of relatives of the nearest degree of kindred to him. They will each take
one-eleventh of the property.
49.Children’s advancements not brought in to hotchpot. Where
a distributive share in the property of a person who has died intestate is
claimed by a child, or any descendant of a child, of such person, no money or
other property which the intestate may, during his life, have paid, given or
settled to, or for , the advancement of, the child by whom or by whose
descendant the claim is made shall be taken into account in estimating such
distributive share.
CHAPTER III
SPECIAL RULES FOR PARSI INTESTATES
50.General principles relating to intestate succession. For
the purpose of intestate succession among Parsis.
(a) there is no distinction between those who were actually
born in the lifetime of a person deceased and those who at the date of his
death were only conceived in the womb, but who have been subsequently born
alive ;
(b) a lineal descendant of an intestate who has died in the
lifetime of the intestate without leaving a widow or widower or any lineal
descendant or a widow of any lineal descendant shall not be taken into account
in determining the manner in which the property of which the intestate has died
intestate shall be divided ; and
(c) where a widow of any relative of an intestate has
married again in the lifetime of the intestate, she shall not be entitled to
receive any share of the property of which the intestate has died intestate,
and she shall be deemed not to be existing at the intestates death.
51.Division of a male intestates property among his widow,
children and parents.
— (1) Subject to the provisions of sub-section (2), the
property of which a male Parsi dies intestate shall be divided —
(a) where he dies leaving a widow and children, among the
widow and children, so that the share of each son and of the widow shall be
double the share of each daughter, or
(b) where he dies leaving children but no widow, among the
children, so that the share of each son shall be double the share of each
daughter.
(2) Where a male Parsi dies leaving one or both parents in
addition to children or a widow and children, the property of which he dies
intestate shall be divided so that the father shall receive a share equal to
half the share of a son and the mother shall receive a share equal to half the
share of a daughter.
52.Division of a female intestates property among her widower
and children. The property of which a female Parsi dies intestate shall be
divided —
(a) where she dies leaving a widower and children among the
widower and children so that the widower and each child receive equal shares,
or
(b) where she dies leaving children but no widower, among
the children in equal shares.
53.Division of share of predeceased child of intestate
leaving lineal descendants.
In all cases where a Parsi dies leaving any lineal:
descendant, if any child of such intestate has died in the lifetime of the
intestate, (he division of the share of the property of which the intestate has
died intestate which such child would have taken if \ living at the intestates
death shall be in accordance with the following rules, namely : —
(a) If such deceased child was a son his widow and children
shall take shares in accordance with the provisions of this Chapter as if he
had died immediately after the intestates death : Provided that where such
deceased son has left a widow or a widow of n lineal descendant but no lineal
descendent, the residue of his share after such distribution has been made
shall be divided in accordance with the provisions of this Chapter as property
of which the intestate has died intestate, and in making the division of such
residue the said deceased
son of the intestate shall not be taken into account.
(6) If such deceased child was a daughter, her share shall
be divided equally among her children.
(c)If any child of such deceased child has also died during
the lifetime of the intestate, the share which he or she would have taken if
living at the intestates death shall be divided in like manner in accordance
with clause (a) or clause (b) as the case may be.
(d)Where a remoter lineal descendant of the intestate has
died during the lifetime of the intestate, the provisions of clause (c) shall
apply mutates mutants to the division of any share to which he or she would
have been entitled if living at the intestates death by reason of the
predeceased of all the intestates lineal descendants directly between him or
her and the intestate.
54.Division of property where intestate leaves no lineal
descendant but leaves a widow or widower or a widow of any lineal descendant.
Where a Parsi dies without leaving any lineal descendant but leaving a widow or
widower or a widow of a lineal descendant, the property of which the intestate
dies intestate shall be divided in accordance with the following rules, namely
: —
(a) If the intestate leaves a widow or widower but no widow
of a lineal descendant, the widow or widower shall take half the said property.
(b) If the intestate leaves a widow or widower and also a
widow of any lineal descendant, his widow or her widower shall receive
one-third of the said property, and the widow of any lineal descendant shall
receive another one-third, or if there is more than one such widow, the last
mentioned one-third shall be divided equally among them.
(c) If the intestate leaves no widow or widower but one
widow of a lineal descendant, she shall receive one-third of the said property
or, if the intestate leaves no widow or widower but more than one widow of a
lineal descendant, two-thirds of the said property shall be divided among such
widows in equal snares.
(d) The residue after the division specified in clause (a),
(b) or (c) has been made shall be distributed among the relatives of the
intestate in the order specified in Part T of Schedule IT. The next-of-kin
standing first in Part I of the Schedule shall be preferred to those standing
second, the second to the third, and so on in succession, provided that the
property shall be so distributed that each male shall take double the shore of
each female standing in the same degree of propinquity.
(e) If there are no relatives entitled to the residue under
cause (d), the whole of the residue shall be distributed in proportion to the
share specified among the persons entitled to receive shares under this
section.
55.Division of property where intestate leaves neither
lineal descendants nor a widow or widower nor a widow of any lineal descendant.
When a Parsi dies leaving neither lineal descendants nor a Widow or widower nor
a widow of any lineal descendant, his or her next-of-kin, in the order set
forth in Part II of Schedule II, shall be entitled to succeed to the whole of
the property of which he or she dies interstate. The next-of-kin standing first
in Part n of that Schedule shall be preferred to those standing second, the
second to the third, and so on in succession, provided that the property shall
be so distributed that each male shall take double the share of each female
standing in the same degree of propinquity.
56.Division of property where there is no relative entitled
to succeed under the other provisions of this Chapter. Where there is no
relative entitled to succeed under the other provisions of this Chapter 1o the
property of which a Parsi has died intestate, the said property shall be
divided equally among those of the intestates relatives who are in the nearest
degree of kindred to him.
PAST VI
Testamentary Succession
CHAPTER I
INTRODUCTORY
57.Application of certain provisions of Part to a class of
wills made by Hindus, etc.
The provisions of this Part which are set out in Schedule
III shall, subject to the restrictions and modifications specified therein, apply-
(c) to all wills and codicils made by any Hindu, Buddhist,
Sikh or Jaina on or after the 1st day of January, 1927, to which those
provisions are not applied by clauses (a) and (b) : , Provided that marriage
shall not revoke any such will or codicil.
58.General application of Part. — (1) The provisions of this
Part shall not apply to testamentary succession to the property of any Muslim
nor, save as provided by section 57, to testamentary succession to the property
of any Hindu, Buddhist, Sikh or Jaina ; nor shall they apply to any will made
before the first day of January, 1866.
(2) Save as provided in sub-section (1) or by any other law
for the time being in force, the provisions of this Part shall constitute the
law of Pakistan applicable to all cases of testamentary succession.
CHAPTER II
OF WILLS AND CODICILS
59.Person capable of making wills. Every person of sound
mind not being a minor may dispose of his property by will.
Explanation 1. —A married woman may dispose by will of any
property which she could alienate by her own act during her life.
Explanation 2. —Persons who are deaf or dumb or blind are
not thereby incapacitated for making a will if they are able to know what they
do by it.
Explanation. 3. —A person who is ordinarily insane may make a
will during an interval in which he is of sound mind,
Explanation 4. —No person can make a will while he is in
such a state of mind, whether arising from intoxication or from illness or from
any other cause, that he does not know what he is doing.
Illustrations
(i) A can perceive what is going on in his immediate
neighbourhood, and can answer familiar questions, but has not a competent
understanding as to the nature of his property, or the persons who are of
kindred to him, or in whose favour it would be proper that he should make his
will. A cannot make a valid will.
(ii) A executes an instrument purporting to be his will, but
he docs not understand the nature of the instrument, nor the effect of its
provisions. This instrument is not a valid will. (iii) A, being very feeble and
debilitated, but capable of exercising a judgment as to the proper mode of
disposing of his property, makes a will. This is a valid will.
60.Testamentary guardian. A father,, whatever his age may
be, may by will appoint a guardian or guardians for his child during minority,
61.Will obtained by fraud, coercion or importunity. A will
or any part of a will, the making of which has been caused by fraud or
coercion, or by such importunity as takes away the free agency of the testator,
is void.
Illustrations
(i) A falsely and knowingly represents to the testator that
the testators only child is dead, or that he has done some undutiful act and
thereby induces the testator to make a will in his,
As, favour ; such will has been obtained by fraud, and is
invalid.
(ii)A, by fraud and deception, prevails upon the testator to
bequeath a legacy to him. The bequest is void.
(iii)A, being a prisoner by lawful authority, makes his
will. The will is not invalid by reason of the imprisonment.
(iv)A threatens to shoot B, or to burn his house or to cause
him to be arrested on a criminal charge, unless he makes a bequest in favour of
C. B, in consequence, makes a bequest in favour of C. The bequest is void, the
making of it having been caused by coercion.
(v)A, being of sufficient intellect, if undisturbed by the
influence of others, to make a will yet being so much under the control of B
that he is not a free agent, makes a will, dictated by B. It appears that he
would not have executed the will but for fear of B. The will is invalid.
(vi)A, being in so feeble a state of health as to be unable
to resist importunity, is pressed by B to make a will of a certain purport and
does so merely to purchase peace and in submission to B. The will is invalid.
(vii)A being in such a state of health as to be capable of
exercising his own judgment and volition, B uses urgent intercession and
persuasion with him to induce him to make a will of a certain purport. A, in
consequence of the intercession and persuasion, but in the free exercise of his
judgment and volition, makes his will in the manner recommended by B. The will
is not rendered invalid by the intercession and persuasion of B.
(viii)A, with a view to obtaining a legacy from B, pays him
attention and flatters him and thereby produces in him a capricious partiality
to A. B, in consequence of such attention and flattery, makes his will, by
which he leaves a legacy to A. The bequest is not rendered invalid by the
attention and flattery of A.
62. Will may be revoked or altered. A will is liable to be
revoked or altered by the maker of it at any time when he is competent to
dispose of his property by will.
CHAPTER III
OF THE EXECUTION OF UNPRIVILEGED WILLS
63.Execution of unprivileged wills. Every testator, not
being a soldier employed in an expedition or engaged in actual warfare, hot an
airman so employed or engaged, or a mariner at sea, shall execute his will
according to the following rules :
(a) The testator shall sign or shall affix his mark to the
will, or it shall be signed by some other person in his presence and by his
direction.
(b) The signature or mark of the testator, or the signature
of the person signing for him, shall be so placed that it shall appear that it
was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses,
each of whom has seen the testator sign or affix his mark to the will or has
seen some other person sign the will, in the presence and by the direction of
the testator, or has received from the testator a personal acknowledgment of
his signature or mark, or of the signature of such other person ; and each of
the witnesses shall sign the will in the presence of the testator, but it shall
not be necessary that more than one witness be present at the same time, and no
particular form of attestation shall be necessary.
64.Incorporation of papers by reference. If a testator, in a
will or codicil duly attested, refers to any other document then actually
written as expressing any part of his intentions, such document shall be deemed
to form a part of the will or codicil in which it is referred to
of privileged wills
65.Privileged wills. Any soldier being employed in an
expedition or engaged in actual warfare, or an airman so employed or engaged. or
any mariner being at sea, may, if he has completed the age of eighteen years,
dispose of his property by a will made in the manner provided in section 66.
Such wills are called privileged wills.
Illustrations
(i) A, a medical officer attached to a regiment, is actually
employed in an expedition. He is a soldier actually employed in an expedition,
and can make a privileged will.
(ii) A is at sea in a merchant-ship, of which he is the
purser. He is a mariner, and, being at sea, can make a privileged will.
(iii) A, a soldier serving in the field against insurgents,
is a soldier engaged in actual warfare, and as such can make a privileged will.
(iv) A, a mariner of a ship, in the course of a voyage, is
temporarily on shore while she is lying in harbour. He is, for the purposes of
this section, a mariner at sea, and can make a privileged will.
(y) A, an admiral who commands a naval force, but who lives
on shore, and only occasionally goes on board his ship, is not considered as at
sea, and cannot make a privileged will.
(vi) A, a mariner serving on a military expedition, but not
being at sea, is considered as a soldier, and can make a privileged will.
66.Mode of making, and rules for executing, privileged
wills. — (1) Privileged wills may be in writing, or may be made by word of
mouth.
(2) The execution of privileged wills shall be governed by
the following rules : —
(a) The will may be written wholly by the testator, with his
own hand. In such case it need not be signed or attested.
(b) It may be written wholly or in part by another person,
and signed by the testator. In such case it need not be attested.
(c) If the instrument purporting to be a will is written
wholly or in part by another person and is not signed by the testator, it shall
be deemed to be his will, if it is shown that it was written by the testators
directions or that he recognised it as his will.
(d) If it appears on the face of the instrument that the
execution of it in the manner intended by the testator was not completed, the
instrument shall not, by Ins. by the Repealing and Amending Act, 1927 (10 of
1927), s. 7 and 1st Sch. reason of that circumstance, be invalid, provided that
his non-execution of it can be reasonably ascribed to some cause other than the
abandonment of the testamentary intentions expressed in the
instrument.
(e) If the soldier, 1 airman or mariner has written
instructions for the preparation of his will, but has died before it could be
prepared and executed, such instructions shall be considered to constitute his
will.
(f) If the soldier, airman or mariner has, in the presence
of two witnesses, given verbal instructions for the preparation of his will,
and they have been reduced into writing in his lifetime, but he has died before
the instrument could be prepared and executed, such instructions shall be
considered to constitute his will, although they may not have been reduced into
writing in his presence, nor read over to him.
(g) The soldier, airman or mariner may make a will by word
of mouth by declaring his intentions before two witnesses present at the same
time.
(h) A will made by word of mouth shall he null at the -
expiration of one month after the testator, being still alive, has ceased to be
entitled to make a privileged will.
CHAPTER V
OF THE ATTESTATION, REVOCATION, ALTERATION AND REVIVAL OF
WILLS.
67.Effect of gift to attesting witness. A will shall not be
deemed to be insufficiently attested by reason of any benefit thereby given
either by way of bequest or by way of appointment to any person attesting it,
or to his or her wife or husband ; but the bequest or appointment shall be void
so far as concerns the person so attesting, or the wife or husband of such
person, or any person claiming under either of them.
Explanation. —A legatee under a will does not lose his legacy
by attesting a codicil which confirms the will.
68.Witness not disqualified by interest or by being
executor. No person, by reason of interest in, or of his being an executor of,
a will, shall be disqualified as a witness to prove the execution of the will
or to prove the validity or invalidity thereof.
69.Revocation of will by testators marriage. Every 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.
70.Revocation of unprivileged will or codicil. No
unprivileged will or codicil, nor any part thereof, shall be revoked otherwise
than by marriage, or by another will or codicil, or by some writing declaring
an intention to revoke the same and executed in the manner in which an
unprivileged will is hereinbefore required to be executed, or by the burning,
tearing or otherwise destroying the same by the testator or by some person in his
presence and by his direction with the intention of revoking the same.
Illustrations
(i) A has made an unprivileged will. Afterwards, A makes
another unprivileged will which purports to revoke the first. This is a
revocation.
(ii) A has made an unprivileged will. Afterwards, A, being
entitled to make a privileged will, makes a privileged will, which purports to
revoke his unprivileged will. This is a revocation.
71.Effect of obliteration, interlineation or alteration in
unprivileged will. No obliteration, interlineation or other alteration made in
any unprivileged will after the execution thereof shall have any effect, except
so far as the words or meaning of the will have been thereby rendered illegible
or undiscernibly, unless such alteration has been executed in like manner as
hereinbefore is required for the execution of the will :
Provided that the will, as so altered, shall be deemed to be
duly executed if the signature of the testator and the subscription of the
witnesses is made in the margin or on some other part of the will opposite or
near to such alteration, or at the foot or end of or opposite to a memorandum
referring to such alteration, and written at the end or some other part of the
will.
72.Revocation of privileged will or codicil. A privileged
will or codicil may be revoked by the testator by an unprivileged will or
codicil, or by any act expressing an intention to revoke it and accompanied by
such formalities as would be sufficient to give validity to a privileged will,
or by the burning, tearing or otherwise destroying the same by the testator, or
by some person in his presence and by his direction, with the intention of
revoking the
same.
Explanation. — In order to the revocation of a privileged
will or codicil by an act accompanied by such formalities as would be
sufficient to give validity to a privileged will, it is not necessary that the
testator should at the time of doing that act be in a situation which entitles
him to make a privileged will.
73. Revival of unprivileged will. — (1) No unprivileged will
or codicil, nor any part thereof, which has been revoked in any manner, shall
be revived otherwise than by the re- execution thereof, or by a codicil
executed in manner hereinbefore required, and showing an intention to revive
the same.
(2) When any will or codicil, which has been partly revoked
and afterwards wholly revoked, is revived, such revival shall not extend to so
much thereof as has been revoked before the revocation of the whole thereof,
unless an intention to the contrary is shown by the will or codicil.
CHAPTER VI
OF THE CONSTRUCTION OF WILLS
74.Wording of will. It is not necessary that any technical
words or terms of art be used in a will, but only that the wording be such that
the intentions of the testator can be known therefrom.
75.Inquiries to determine questions as to object or subject
of will. For the purpose of determining questions as to what person or what
property is denoted by any words used in a will, a Court shall inquire into
every material fact relating to the persons who claim to be interested under
such will, the property which is claimed as the subject of disposition, the
circumstances of the testator and of his family, and into every fact a
knowledge of which may conduce to the right application of the words which the
testator has used.
Illustrations
(i) A, by his will, bequeaths 1,000 rupees to his eldest son
or to his youngest grandchild, or to his cousin, Mary. A Court may make inquiry
in order to ascertain to what person the description in the will applies.
(ii) A, by his will, leaves to B " my estate called
Black Acre ". It may be necessary to take evidence in order to ascertain
what is the subject-matter of the bequest ; that is to say, what estate of the
testators is called Black Acre.
(iii) A, by his will, leaves to B " the estate which 1
purchased of C". It may be necessary to take evidence in order to
ascertain what estate the testator purchased of C.
76.Misnomer or misdescription of object. — (1) Where the
words used in a will to designate or describe a legatee or a class of legatees
sufficiently show what is meant, an error in the name or description shall not
prevent the legacy from taking effect.
(2) A mistake in the name of a legatee may be corrected by a
description of him, and a mistake in the description of a legatee may be
corrected by the name.
Illustrations
(i) A bequeaths a legacy " to Thomas, the second son of
my brother John". The testator has an only brother named John, who has no
son named Thomas, but has a second son whose name is William. William will have
the legacy.
(ii) A bequeaths a legacy " to Thomas, the second son
of my brother John ". The testator ha an only brother, named John, whose
first son is named Thomas, and whose second son is named William. Thomas will
have the legacy.
(iii) The testator bequeaths his property " to A and B,
the legitimate children of C". C has no
legitimate child, but has two illegitimate children, A and
B. The bequest to A and B takes effect, although they are illegitimate.
(iv)The testator gives his residuary estate to be divided
among " my seven children and, proceeding to enumerate them, mentions six
names only. This .omission will not prevent the seventh child from taking a
share with the others.
(v)The testator, having six grandchildren, makes a bequest
to "my six grandchildren " and, proceeding to mention them by their
Christian names, mentions one twice over omitting another altogether. The one
whose name is not metioned will take a share with the others.
(vi)The testator bequeaths " 1,000 rupees to each of
the three children of A ". At the date of the will A has four children.
Each of these four children will, if he survives the testator, receive a legacy
of 1,000 rupees.
77.When words may be supplied. Where any word material to
the full expression of the meaning has been omitted, it may be supplied by the
context.
Illustration
The testator gives a legacy of "five hundred " to
his daughter A and a legacy of " five hundred rupees" to his daughter
B. A will take a legacy of five hundred rupees.
78.Rejection of erroneous particulars in description of
subject. If the thing which the testator intended to bequeath can be
sufficiently identified from the description of it given in the will but some
parts of the description do not apply, such parts of the description shall be
rejected as erroneous, and the bequest shall take effect.
Illustration
(i) A bequeaths to B " my marsh-! ands lying in L and
in the occupation of X ". The testator had marsh-lands lying in L but had
no marsh-lands in the occupation of X. The words in the occupation of X "
shall be rejected as erroneous, and the marsh-lands of the testator lying in L
will pass by the bequest.
(ii) The testator bequeaths to A" my zamindari of
Rampur ". He had an estate at Rampur but it was a taluq and not a
zamindari. The taluq passes by this bequest.
79.When part of description may not be rejected as
erroneous. If a will mentions several circumstances as descriptive of the thing
which the testator intends to bequeath, and there is any property of his in respect
of which all those circumstances exist, the bequest shall be considered as
limited to such property and it shall not be lawful to reject any part of the
description as erroneous, because the testator had other property to which such
part of the description does not apply.
Explanation. — In judging whether a case falls within the
meaning of this section, any words which would be liable to rejection under
section 78 shall be deemed to have been struck out of the will.
Illustrations
(i) A bequeaths to B " my marsh-lands lying in L and in
the occupation of X ". The testator had marsh-lands lying in L, some of
which were in the occupation of X, and some not in the occupation of X. The
bequest will be considered as limited to such of the testators marsh- lands
lying in L as were in the occupation of X.
(ii) A bequeaths to B " my marsh-lands lying in L and
in the occupation of X, comprising 1,000 bighas of lands ". The testator
had marah-lands lying in L some of which were in the occupation of X and some
not in the occupation of X. The measurement is wholly in applicable to the
marsh-lands of either class, or to the whole taken together. The measurement
will be considered as struck out of the will, and such of the testators marsh-
lands lying in L as were in the occupation of X shall alone pass by the
bequest.
80.Extrinsic evidence admissible in cases of patent
ambiguity or deficiency. Where the words of a will are unambiguous, but it is
found by extrinsic evidence that they admit of applications, one only of which
can have been intended by the testator, extrinsic evidence may be taken to show
which of these applications was
intended.
Illustrations
(i) A man, having two cousins of the name of Mary, bequeaths
a sum of money to " my cousin Mary". It appears that there are two
persons, each answering the description in the will. That description,
therefore, admits of two applications, only one of which can have been intended
by the testator. Evidence is admissible to show which of the two applications
was intended.
(ii) A, by his will, leaves to B "my estate called
Sultanpur Kliurd". It turns out that he had two estates called Sultanpur
Kliurd. Evidence is admissible to show which estate was intended.
81.Extrinsic evidence inadmissible in case of patent
ambiguity or deficiency.
Where there is an ambiguity or deficiency on the face of a
will, no extrinsic evidence as to the intentions of the testator shall be
admitted.
Illustrations
(i) A man has an aunt, Caroline, and a cousin, Mary, and has
no aunt of the name of Mary. By his will he bequeaths 1.000 rupees to "my
aunt. Caroline" and 1,000 rupees to "my cousin, Mary" and
afterwards bequeaths 2,000 rupees to "my before-mentioned aunt,
Mary". There is no person to whom the description given in the will can
apply, and evidence is not admissible to show who was meant by "my
before-mentioned aunt, Mary". The bequest is therefore void for
uncertainty under section 89.
(ii) A bequeaths 1,000 rupees to leaving a blank for the
name of the legatee. Evidence is not admissible to show what name the testator
intended to insert.
(iii) A bequeath to B rupees, or "my estate of ".
Evidence is not admissible to show what sum or what estate the testator
Intended to insert.
82.Meaning of clause to be collected from entire will. The
meaning of any clause in a will is to be collected from the entire instrument,
and all its parts are to be construed with reference to each other.
Illustration
(i) The testator gives to B a specific fund or property at
the death of A, and by a subsequent clause gives the whole o; his property to
A. The effect of the several clauses taken together is to vest the specific
fund or property in A for life, and after his decease in B ; it appearing from
the bequest to B that the testator meant to use in a restricted sense the words
in which he describes what he gives to A.
(ii) Where a testator having an estate, one part of which is
called Black Acre, bequeaths the whole of his estate to A, and in another part
of his will bequeaths Black Acre to B, the latter bequest is to be read as an
exception out of the first as if he had said "I give Black Acre to B, and
all the rest of any estate to A".
83.When words may be understood in restricted sense, and
when in sense wider than usual. General words may be understood in a restricted
sense where it may be collected from the will that the testator meant to use
them in a restricted sense ; and words may be understood in a wider sense than
that which they usually bear, where it may be collected from the other words of
the will that the testator meant to use them in such wider sense.
Illustrations
(i) A testator gives to A "my farm in the occupation of
B", and to C "all my marshland in L".
Part of the farm in the occupation of B consists of
marsh-lands in L, and the testator also has other marsh-lands in L. The general
words, "all my marsh-lands in L," are restricted by the gift to A. A
takes the whole of the farm in the occupation of B, including that portion of
the farm which consists of marsh-lands in L.
(ii)The testator (a sailor on ship-board) bequeathed to his
mother his gold ring, buttons and chest of clothes and to his friend, A (a
shipmate), his red box, clasp-knife and all things not before bequeathed. The
testators share in a house does not pass to A under this bequest.
(iii)A, by his will, bequeathed to B all his household
furniture, plate, linen, china, books, pictures and all other goods of whatever
kind ; and afterwards bequeathed to B a specked part of his property. Under the
first bequest, B is entitled only to such articles of the testators as are of
the same nature with the articles therein enumerated.
84.Which of two possible constructions preferred. Where a
clause is susceptible of two meanings according to one of which it has some
effect, and according to the other of which it can have none, the former shall
be preferred.
85.No part rejected, if it can be reasonably construed. No
part of a will shall be rejected as destitute of meaning if it is possible to
put a reasonable construction upon it.
86.Interpretation of words repeated in different parts of
will. If the same words occur in different parts of the same will, they shall
be taken to have been used everywhere in the same sense, unless a contrary
intention appears.
87.Testators intention to be effectuated as far as possible.
The intention of the testator shall not be set aside because it cannot take
effect to the full extent, but effect is to be given to it as far as possible.
Illustration
The testator by a will made on his death-bed bequeathed all
his property to C D for life and after his decease to a certain hospital. The
intention of the testator cannot lake effect to its full extent, because the
gift to the hospital is void under section 118, but it will take effect so far
as regards the gift to C D.
88.The last of two inconsistent clauses prevails. Where two
clauses or gifts in a will are irreconcilable, " so that they cannot
possibly stand together, the last shall prevail.
Illustration
(i) The testator by the first clause of his will leaves his
estate of Gujrat " to A ", and by the last clause of hi will leaves
it " to B and not to A ". B will have it.
(ii) If a man at the commencement , of his will gives his
house to A, and at the close of it directs that his house shall be sold and the
proceeds invested for the benefit of B, the latter disposition will prevail.
89.Will or bequest void for uncertainty. A will or bequest
not expressive of any definite intention is void for uncertainty.
Illustration
If a testator says " I bequeath goods to A ", or
" I bequeath to A ", or I leave to A all the goods mentioned in the
Schedule " and no Schedule is found, or "I bequeath money, wheat,
oil," or the like, without saying how much, this is void.
90.Words describing subject refer to property answering
description at testators death. The description contained in a will of
property, the subject of gift, shall, unless a
contrary intention appears by the will, be deemed to refer
to and comprise the property answering that description at the death of the
testator.
91.Power of appointment executed by general bequest. Unless
a contrary intention appears by the will, a bequest of the estate of the
testator shall be construed to include any property which he may have power to
appoint by will to any object lie may think proper, and shall operate as an
execution of such power ; and a bequest of property described in a general
manner shall be construed to include any property to which such description may
extend, which he may have power to appoint by will to any object he may think
proper, and shall operate as an execution of such power.
92.Implied gift to objects of power in default of
appointment. Where property is bequeathed to or for the benefit of certain
objects as a specified person may appoint or for the benefit of certain objects
in such proportions as a specified person may appoint, and the will does not
provide for the event of no appointment being made ; if the power given by the
will is not exercised, the property belongs to all the objects of the power in
equal shares.
Illustration
A, by his will, bequeaths a fund to his wife, for her life,
and directs that at her death it shall be divided among his children in such
proportions as she shall appoint. The widow dies without having made any
appointment. The fund will be divided equally among the children.
93.Bequest to "heirs", etc., of particular person
without qualifying terms. Where a bequest is made to the "hers" or
"right heirs" or "relations" or "nearest
relations" or "family" or "kindred" or "nearest
of kin" or "next-of-kin" of a particular person without any
qualifying terms, and the class so designation forms the direct and independent
object of the bequest, the property bequeathed shall be distributed as if it
had belong to such person and he had died intestate in respect of it, leaving
assets for the payment of his debts independently of such property.
Illustration
(i) A leaves his property "In my own nearest
relations". The property goes to those who would be entitled to it if A
had died intestate, leaving assets for the payment of his debts - independently
of such property.
(ii) A bequeaths 10,000 rupees "to B for his life, and,
after the death of B, to my own right heirs". The legacy after Bs death
belongs to those who would be entitled to it if it had formed part of As unbequeathed
property.
(iii) A leaves his property to B ; but if B dies before him,
to Bs next-of-kin ; B dies before A ; the property devolves as if it had
belonged to B, and he had died intestate, leaving assets for the payment of his
debts independently of such property.
(iv) A leaves 10,000 rupees "to B for his life, and
after his decease to the hairs of C". The legacy goes as if it had
belonged to C, and he had died intestate, leaving assets for the payment of his
debts independently of the legacy.
94.Bequest to "representatives, " etc., of
particular person. Where a bequest is made to the "representatives"
or " legal representatives" or "personal representatives"
or "executors or administrators" of a particular person, and the
class so designated forms the direct and independent object of the bequest, the
property bequeathed shall be distributed as if it had belonged to such person
and he had died intestate in respect of it.
Illustration
A bequest is made to the "legal representatives"
of A. A has died intestate and insolvent. B is his administrator. B is entitled
to receive the legacy, and will apply it in the first place to
the discharge of such part of An debts as may remain unpaid
: if there be any surplus B will pay it to those persons who at As death would
have been entitled to receive any property of As which might remain after
payment of his debts, or to the representatives of such persons.
95.Bequest without words of limitation. Where property is
bequeathed to any person, he is entitled to the whole interest of the testator
therein, unless it appears from the will that only a restricted interest was
intended for him.
96.Bequest in alternative. Where property is bequeathed to a
person with a bequest in the alternative to another person or to a class of
persons, then- if a contrary intention does not appear by the will, the legatee
first named shall be entitled to the legacy if he is alive at the time when it
takes effect ; but if he is then dead, the person or class of persons named in
the second branch of the alternative shall take the legacy.
Illustrations
(i) A bequest is made to A or to B. A survives the testator.
B takes nothing.
(ii) A bequest is made to A or to B. A dies after the date
of the w ill, and before the testator. The legacy goes to B.
(iii) A bequest is made to A or to B. A is dead at the date
of the will. The legacy goes to B. (iv) Property is bequeathed to A or his
heirs. A survives the testator. A takes the property absolutely.
(v) Property is bequeathed to A or his nearest of kin. A
dies in the lifetime of the testator. Upon the death of the testator, the
bequest to As nearest of kin takes effect.
(vi) Property is bequeathed to A for life, and after his
death to B or his heirs. A and B survive the testator. B dies in As lifetime. Upon
As death the bequest to the heirs of B takes effect.
(vii) Property is bequeathed to A for life, and after his
death to B or his heir; B dies in the testators lifetime. A survives the
testator. Upon As dead the bequest to the heirs of B takes effect.
97.Effect of words describing a class added to bequest to
person. Where property is bequeathed to a person, and words are added which
describe a class of persons but do not denote them as direct objects of a
distinct and independent gift, such person is entitled to the whole interest of
the testator therein, unless a contrary intention appears by the will.
Illustration
(i) A bequest is made — to A and his children,
to A and his children by his present wife, to A and his
heirs,
to A and the heirs of his body,
to A and the heirs male of his body, to A and the heirs
female of his body, to A and his issue, to A and his family,
to A and his descendants, to A and his representatives, to A
and his personal representatives,
to A, his executors and administrators.
In each of these cases, A takes the whole interest which the
testator had in the property. (ii) A bequest is made to A and his brothers. A
and his brothers are jointly entitled to the legacy.
(iii) A bequest is made to A for life and after his death to
his issue. At the death of A the property belongs in equal shares to all
persons who then answer the description of issue of A.
98.Bequest to class of persons under general description
only. Where a bequest is made to a class of persons under a general description
only, no one to whom the words of the description are not in their ordinary
sense applicable shall take the legacy.
99.Construction of terms. In a will —
(a)the word "children" applies only to lineal
descendants in the first degree of the person whose "children are spoken
of ;
(b)the word "grandchildren" applies only to lineal
descendants in the second degree of the person whose "grandchildren"
are spoken of:
(c)the words " nephews " and " nieces "
apply only to children of brothers or sisters ;
(d)the words " cousins ", or " first
cousins", or " cousinsgerman ", apply only to children of
brothers or of sisters of the father or mother of the person whose
"cousins ", or" first cousins", or " cousinsgerman
", are spoken of;
(e)the words "First cousins once removed "apply
only to children of cousinsgerman, or to cousinsgerman of a parent of the
person whose " first cousins once removed "are spoken of
;
(f)the words " second cousins "apply only to
grandchildren of brothers or of sisters of the grandfather or grandmother of
the person whose " second cousins " are spoken of ; ,
(g)the words " issue " and "descendants
" apply to all lineal descendants whatever of the parson whose "
issue " or "descendants " are spoken of ;
(h)words expressive of collateral relationship apply alike
to relatives of full and of half blood ; and
(f)all words expressive of relationship apply to a child in
the womb who is afterwards born alive.
100. Words expressing relationship denote only legitimate
relatives or failing such relatives reputed legitimate. In the absence of any
intimation to the contrary in a will, the word "child", the word
"son", the word "daughter", or any word which expresses
relationship, is to be understood as denoting only a legitimate relative, or,
where there is no such legitimate relative, a person who has acquired, at the
date of the will, the reputation of being such relative.
Illustration
(i)A having three children, B, C and D, of whom B and C are
legitimate and D is illegitimate, leaves his property to be equally divided
among "my children". The property belongs to . and C in equal shares,
to the exclusion of D.
(ii)A, having a niece of illegitimate birth, who has
acquired the reputation of being his niece, and having no legitimate niece
bequeaths a sum of money to his niece. The illegitimate niece is entitled to
the legacy.
(iii)A, having in his will enumerated his children, and
named as one of them B, who is illegitimate, leaves a legacy to "my said
children. 8 will take a share in the legacy alongwith the legitimate children.
(iv)A leaves a legacy to "the children of B". B is
dead and has left none but illegitimate children. All those who had at the dale
of the will acquired the reputation of being the children of B are objects of
the gift.
(v)A bequeaths a legacy to "the children of E". B
never had any legitimate child. C and U had, at the date of the will, acquired
the reputation of being children of B. After the; date of the will and before
the death of the testator, E and F were born, and acquired the reputation of
being children of B. Only C and D are objects of the bequest.
(vi)A makes a bequest in favour of his child by a certain
woman, not his wife, B had acquired at the date of the will the reputation of
being the child of A by the woman designated. B takes the legacy.
(vii)A makes a bequest in favour of his child to be born of
a woman who never becomes his wife. The bequest is void.
(viii)A makes a bequest in favour of the child of which a
certain woman, not married to him, is pregnant. The bequest is void.
101.Rules of construction where will purports to make two
bequests to same person. Where a will purports to make two bequests to the same
person, and a question arises whether the testator intended to make the second
bequest instead of or in addition to the first ;
if there is nothing in the will to show what he intended,
the following rules shall have effect in, determining the construction to be
put upon the will : —
(a) If the same specific thing is bequeathed twice to the
same legatee in the same will or in the will and again in the codicil, he is
entitled to receive that specific thing only.
(b) Where one and the same will or one and the same codicil
purports to make, in two places, a bequest to the same person of the same
quantity or amount of anything, he shall be entitled to one such legacy only.
(c) Where two legacies of unequal amount are given to the
same person in the same will, or in the same codicil, the legatee is entitled
to both.
(d) Where two legacies, whether equal or unequal in amount,
are given to the same legatee, one by a will and the other by a codicil, or
each by a different codicil, the legatee is entitled to both legacies.
Explanation. —In clauses (a) to (d) of this section, the
word "will" does not include a codicil.
Illustrations
(i) A, having ten shares, and no more, in this Imperial Bank
of India, made his will, which contain near its commencement the word "I
bequeath my ten shares in the Imperial Bank of India to B". After other
bequests, the will concludes with the words "and I bequeath my ten shares
in the Imperial Bank of India to B". B is entitled simply to receive As
ten shares in the Imperial Bank of India.
(ii) A, having one diamond ling, which was given him by B,
bequeaths to C the diamond ring which was given by B. A afterwards made a
codicil to his will, and thereby, after giving other legacies, he bequeathed to
C the diamond ring which was given him by B. C can claim nothing except the
diamond ring which was given to A by B.
(iii) A, by his will, bequeaths to B the sum of 5,000 rupees
and afterwards in the same will repeats the bequest in the same words. B is
entitled to one legacy of 5,090 rupees only. (iv) A by, his will. bequeaths to
B the sum of 5,000 rupees and afterwards in the same will bequeaths to B the sum
of 6,000 rupees. B is entitled to receive 11,000 rupees.
(v) A, by his will, bequeaths to B 5,000 rupees and by a
codicil to the will he bequeaths to him 5,000 rupees. B is entitled to receive
10,000 rupees.
(vi) A, by one codicil to his will, bequeaths to B 5,000
rupees and by another codicil bequeaths to him 6,000 rupees. B is entitled to
receive 11,000 rupees.
(vii) A, by his will, bequeaths "500 rupees to B
because she was my nurse", and in another part of the v. ill bequeaths 500
rupees to B "because she went to England with my children". B is
entitled to receive, 1,000 rupees,
(viii) A, by his will, bequeaths to B the sum of 5,000
rupees and also, in another part of the will, an annuity of 400 rupees. B is
entitled to both legacies.
(ix) A, by his will, bequeaths to B the sum of 5,000 rupees
and also bequeaths to him the sum of 5,000 rupees if he shall attain the age of
18. B is, entitled absolutely to one sum of 5,000 rupees, and takes a
contingent interest in another sum of 5,000 rupees.
102.Constitution of residuary legatee. A residuary legatee
may be constituted by any words that show an intention on the part of testator
that the person designated shall take
the surplus or residue of his property.
Illustrations
(i)A makes her will, consisting of several testamentary
papers, in one of which are contained the following words: —"I think there
will be something left, after all funeral ex"- ;.-as, etc., to give to B,
now at school, towards equipping him to any profession he may hereafter be appointed
to". B is constituted residuary legatee.
(ii)A males his will, with the following passage at the end
of it: —"l believe there will be found sufficient in my bankers hands to
defray and discharge my debts, which I hereby desire B to do. and keep the
residue for her own use and pleasure." E is constituted the residuary
legates,
(iii)A bequeaths all his property to B, except certain
stocks and funds which he bequeaths to C. B is the residuary legatee.
103.Property to which residuary legatee entitled. Under a
residuary bequest, the legatee is entitled to all property belonging to the
testator at the time of his, death, of which he has not made any other
testamentary disposition which is capable of taking effect.
Illustration
A. by his will bequeaths certain legacies, of which one is
void under section 118, and another lapses by the death of the legatee. He
bequeaths the residue of his property to 8. After the date of his will A
purchases a zamindari, which belongs to him at the time of his death. B is
entitled to the two legacies and the zamindari as part of the residue.
104.Time of vesting legacy in general terms. If a legacy is
given in general terms, without specifying the time when it is to be paid, the
legatee has a vested interest in it from the day of the death of the testator,
and, if he dies without having received it, it shall pass to his
representatives.
105.In what case legacy lapses. — (1) If the legatee does
not survive the testator, the legacy cannot take effect, but shall lapse and
form part of the residue of the testators property, unless it appears by the
will that the testator intended that it should go to some other person.
(2) In order to entitle the representatives of the legatee
to receive the legacy, it must be proved that he survived the testator.
Illustrations
(i) The testator bequeaths to B "500 rupees which B
owes me". B dies before the testator ; the legacy lapses.
(ii) A bequest is made to A and his children. A dies before
the testator, or happens to be dead when the will is made. The legacy to A and
his children lapses.
(iii) A legacy is given to A, and, in case of his dying
before the testator, to B. A dies before the testator. The legacy goes to B.
(iv) A sum of money is bequeathed to A for life, and after
his death to B. A dies in the lifetime of the testator ; B survives the
testator. The request to B takes effect.
(v) A sum of money is bequeathed to A on his completing his
eighteenth year, and in case he should die before he completes his eighteenth
year, to B. A completes his eighteenth year, and dies in the lifetime of the
testator. The legacy to A lapses, and the bequest to B does not take effect.
(vi) The testator and the legatee perished in the same
ship-wreck. There is no evidence to show which died first, the legacy lapses.
106.Legacy does not lapse if one of two joint legatees die
before testator. If a legacy is given to two persons jointly, and one of them
dies before the testator, the other
legatee takes the whole.
Illustration
The legacy is simply to A and B. A dies before the testator.
B takes the legacy.
107.Effect of words showing testators intention to give
distant shares. If a legacy is given to legatees in words which show that the
testator intended to give them distinct shares of it, then, if any legatee dies
before the testator, so much of the legacy as was intended for him shall fall
into the residue of the testators property.
Illustration
A sum of money is bequeathed to A, B and C, to be equally
divided among them. A dies before the testator. B and C will only take so much
as they would have had if A had survived the testator.
108.When lapsed share goes as undisposed of. Where a share
which lapses is a part of the general residue bequeathed by the will, that
share shall go as undisposed of.
Illustration
The testator bequeaths the residue of his estate to A, B and
C, to be equally divided between them. A dies before the testator. His
one-third of the residue goes as undisposed of.
109.When bequest to testators child or lineal descendant
does not lapse on his death in testators lifetime. Where a bequest has been
made to any child or other lineal descendant of the testator, and the legatee
dies in the lifetime of the testator, but any lineal descendant of his survives
the testator, the bequest shall not lapse, but shall take effect as if the
death of the legatee had happened immediately after the death of the testator,
unless a contrary intention appears by the will.
Illustration
A makes his will, by which he bequeaths a sum of money to
his son, B, for his own absolute use and benefit. B dies before A, leaving a
son, C, who survives A, and having made his will whereby he bequeaths all his
property to his widow, D, The money goes to D.
110.Bequest to a for benefit of B does not lapse by A’s
death. Where a bequest is made to one person for the benefit of another, the
legacy does not lapse by the death, in the testators lifetime, of the person to
whom the bequest is made.
111.Survivorship in case of bequest to described class.
Where a bequest is made simply to a described class of persons, the thing
bequeathed shall go only to such as are alive at the testators death.
Exception. — If property is bequeathed to a class of persons
described as standing in a particular degree of kindred to a specified
individual, but their possession of it is deferred until a time later than the
death of the testator by reason of a prior bequest or otherwise, the property
shall at that time go to such of them as are then alive, and to the
representatives of any of them who have died since the death of the testator.
Illustrations
(i) A bequeaths 1,000 rupees to "the children of
B" without saying when it is to be distributed among them B. had died
previous to the date of the will, leaving three children, C, D and E. E died
after the date of the will, but before the death of A. C and D survive A. The
legacy will belong to C and D, to the exclusion of the representatives of E.
(ii) A lease for years of a house was bequeathed to A for
his life, and after his decease to the children of B. At the death of the testator,
B had two children living, C and D, and he never had any other child.
Afterwards, during the lifetime of A, C died, leaving P, his
executor. D has survived A. D and E arc jointly entitled to
so much of the lease-hold term as remains expired.
(iii)A sum of money was bequeathed to A for her life. and
after her decease, to the children of B. At the death of the testator, B had
two children, living, C and D, and, after that event, two children, E and F,
were born to B. C and E died in the lifetime of A, C having made a will, E
having made no will. A has died, leaving D and F surviving her. The legacy is
to be divided into four equal parts, one of which is to be paid to the executor
of C, one to D, one to the administrator of E and one to P.
(iv)A bequeaths one-third of his lands to B for his life,
and after his decease to the sisters of B. At the death of the testator, B had
two sisters living, C and D, and after that event another sister E was born. C
died during the life of B, D and E have survived B. One-third of As lands
belong to D, E and the representatives of C, in equal shares.
(v)A bequeaths 1,000 rupees to B for life and after his
death equally among the children of C. Up to the death of B, C had not had any
child. The bequest after the death of B is void.
(vi)A bequeaths 1,000 rupees to "all the children born
or to be born " of B to be divided among them at the death of C. At the
death of the testator, B has two children living, D and E. After the death of
the testator, but in the lifetime of C, two other children, F and G, are born
to B. After the death of C, another child is born to B. The legacy belongs to
D, E, F and G, to the exclusion of the after-born child of B.
(vii)A bequeaths a fund to the children of B, to be divided
among them when the eldest shall attain majority. At the testators death. B had
one child living, named C. He afterwards had two other children, named D end E.
E died, but C and D were living when C attained
majority. The final belongs to C, D and the representatives
of E, to the exclusion of any child who may be born to B after Cs attaining
majority.
CHAPTER VII
OF VOID BEQUESTS
112.Bequest to person by particular description, who is not
in existence at testators death. Where a bequest is made to a person by a
particular description, and there is no person in existence at the testators
death who answers the description, the bequest is void.
Exception. — If property is bequeathed to a person described
as standing in a particular degree of kindred to a specified individual, but his
possession of it is deferred until a time later than the death of the testator,
by reason of a prior bequest or otherwise ; and if a person answering the
description is alive at the death of the testator, or comes into existence
between that event and such later time, the property shall, at such later time,
go to that person, or, if he is dead, to his representatives.
Illustrations
(i) A bequeaths 1,000 rupees to the eldest son of B. At the
death of the testator, B has no son. The bequest is void.
(ii) A bequeaths 1,000 rupees to B for life, and after his
death to the eldest son of C. At the death of the testator, C had no son.
Afterwards, during the life of B, a son is born to C. Upon Bs death the legacy
goes to Cs son.
(iii) A bequeaths 1,000 rupees to B for life, and after his
death to the eldest son of C. At the death of the testator, C had no son.
Afterwards during the life of B, a son, named D, is born to C. D dies, then B
dies. The legacy goes to the representative of D.
(iv) A bequeaths his estate of Green Acre to B for life, and
at his decease, to the eldest son of C. Up to the death of B, C has had no son.
The bequest to Cs eldest son is void.
(v) A bequeaths 1,000 rupees to the eldest son of C, to be
paid to him after the death of B. At the death of the testator C has no son,
but a son is afterwards born to him during the life of B and is alive at Bs
death. Cs son is entitled to the 1,000 rupees.
113.Bequest to person not in existence at testators death
subject to prior
bequest. Where a bequest is made to a person not in
existence at the time of the testators death, subject to a prior bequest
contained in the will, the later bequest shall be void, unless it comprises the
whole of the remaining interest of the testator in the thing bequeathed.
Illustrations
(i)Property is bequeathed to A for his life, and after his
death to his eldest son for life, and after the death of the latter to his
eldest son. At the time of the testators death, A has no son. Here the bequest
to As eldest son is a bequest to a person not in existence at the testators
death. It is not a bequest of the whole interest that remains to the testator.
The bequest to As eldest son for his life is void.
(ii)A fund is bequeathed to A for his life, and after his
death to his daughters. A survives the testator. A has daughters some of whom
were not in existence at the testators death. The bequest to As daughters
comprises the whole interest that remains to the testator in the thing
bequeathed. The bequest to As daughters is valid.
(iii)A fund is bequeathed to A for his life, and after his
death to his daughters, with a direction that, if any of them marries under the
age of eighteen, her portion shall be settled so that it may belong to herself
for life and may be divisible among her children after her death. A has no
daughters living at the time of the testators death, but has daughters born
afterwards who survive him. Here the direction for a settlement has the effect
in the case of each daughter who marries under eighteen of substituting for the
absolute bequest to her a bequest to her merely for her life ; that is to say,
a bequest to person not in existence at the time of the testators death of
something which is less than the whole interest that remains to the testator in
the thing bequeathed. The direction to settle the fund is void.
(iv)A bequeaths a sum of money to B for life, and directs
that upon the death of B the fund shall be settled upon his daughters, so that
the portion of each daughter may belong to herself for life, and may be divided
among her children after her death. B has no daughter living at the time of the
testators death. In this case the only bequest to the daughters of B is
contained in the direction to settle the fund, and this direction amounts to a
bequest to person not yet born, of a life-interest in the fund, that is to say,
of something which is less than the whole interest that remains to the testator
in the thing bequeathed. The direction to settle the fund upon the daughters of
B is void.
114. Rule against perpetuity. No bequest is valid whereby
the vesting of the thing bequeathed may be deleted beyond the lifetime of one
or more persons living at the testators death and the minority of some person
who shall be in existence at the expiration of that period, and to whom, if he
attains full age, the thing bequeathed is to belong.
Illustrations
(i)A fund is bequeathed to A for his life and after his
death to B for his life I and after Bs death to such of the sons of B as shall
first attain the age of 25. A and B survive the testator. Here the son of B who
shall first attain the age of 25 may be a son born after the death of the
testator ; such son may not attain 25 until more than 18 years have elapsed
from the death of the longer liver of A and B ; and the vesting of the fund may
thus be delayed beyond the lifetime of A and B and the minority of the sons of
B. the bequest after Bs death is void.
(ii)A fund is bequeathed to A for his life, and after his
death to B for the life, and after Bs death to such of Bs sons as shall first
attain the age of 25. B dies in the lifetime of the testator, leaving one or
more sons. In this case the sons of B are persons living at the time of the
testators decease, and the time when either of them will attain 25 necessarily
falls within his own lifetime. The bequest if valid.
(iii)A fund is bequeathed to A for his life, and after his
death to B for his life, with a direction that after Bs death it shall be
divided amongst such of Bs children as shall attain the age of 18, but that, if
no child of B shall attain that age, the fund shall go to C. Here the
time for the division of the fund must arrive at the latest
at the expiration of 18 years from the death of B, a person living at the
testators decease. All the bequests are valid.
(iv) A fund is bequeathed to trustees for the benefit of the
testators daughters, with a direction that, if any of them marry under age, her
share of the fund shall be settled so as to devolve after her death upon such
of her children as shall attain the age of 18. Any daughter of the testator to
whom the direction applies must be in existence at his decease, and any portion
of the fund which may eventually be settled as directed must vest not later
than 18 years from the death of the daughters whose share it was. All these
provisions are valid.
115.Bequest to a class some of whom may come under rules in
sections 113 and
114.If a bequest is made to a class of persons with regard
to some of whom it is inoperative by reason of the provisions of section 113,
or section 114, such bequest shall be void in regard to those persons only and
not in regard to the whole class .
Illustrations
(i) A fund is bequeathed to A for life, and after his death
to all his children who shall attain the age of 25. A survives the testator,
and has some children living at the testators death. Each child of As living at
the testators death must attain the age of 25 (if at all) within the limits
allowed for a bequest. But A may have children after the testators decease,
some of whom may not attain the age of 25 until more than 18 years have elapsed
after the decease of A. The bequest to As children, therefore, is inoperative
as to any child born after the testators death, 2 and in regard to those who do
not attain the age of 25 within 18 years after As death, but is operative in
regard to the other children of A.
(ii) A fund is bequeathed to A for his life, and after his
death to B, C, D and all other children of A who shall attain the age of 25. B,
C, D arc children of A living at the testators decease. In all other respects
the case is the same as that supposed in illustration i). Although the mention
of B, C and D does not prevent the bequest from being regarded as a bequest to
a class, it is not wholly void. It is operative as regards any of the children
B, C or D, who attains the age of 25 within 18 years after As death.
116.Bequest to take effect on failure of prior bequest.
"Where by reason of any of the rules contained in sections 113 and 114,
any bequest in favour of a person or of a class of persons is void in regard to
such person or the whole of such class, any bequest contained in the same will
and intended to take effect after or upon failure of such prior bequest is also
void.
Illustrations
(i) A fund bequeathed to A for his life, and after his death
to such of his sons as shall first attain the age of 25, for his life, and
after the decease of such son to B. A and B survive the testator. The bequest
to B is intended to take effect after the bequest to such of the sons of A as
shall first attain the age of 25, which bequest is void under section 114. The
bequest to B is void.
(ii) A fund is bequeathed to A for his life, and after his
death to such of his sons as shall first attain the age of 25, and, if no son
of A shall attain that age, to B. A and B survive the testator. The bequest to
B is intended to take effect upon failure of the bequest to such of As sons as
shall first attain the age of 25, which bequest is void under section 114. The
bequest to B is void.
117.Effect of direction for accumulation. — (1) Where the
terms of a will direct that the income arising from any property shall be
accumulated either wholly or in part during any period longer than a period of
eighteen years from the death of the testator, such direction shall, save as
hereinafter provided, be void to the extent to which the period during which
the accumulation is directed exceeds the aforesaid period, and at the end of
such period of eighteen years the property and the income
thereof shall be disposed of as if the period during which the accumulation has
been directed to be made had elapsed.
(2) This section shall not affect any direction for
accumulation for the purpose of —
(i)the payment of the debts of the testator or any other
person taking any interest under the will, or
(ii)the provision of portions for children or remoter issue
of the testator or of any other person taking any interest under the will, or
(iii)the preservation or maintenance of any property
bequeathed ; and such direction may be made accordingly.
118. Bequest to religious or charitable uses. No man having
a nephew or niece or any nearer relative shall have power to bequeath any
property to religious or charitable uses, except by a will executed not less
than twelve months before his death, and deposited within six months from its
execution in some place provided by law for the safe custody of the wills of
living persons.
Illustrations
A having a nephew makes a bequest by a will not execute and
deposited as required — for the relief of poor people :
for the maintenance of sick soldiers ; for the erection or
support of a hospital;
for the education and preferment of orphans ; for the
support of scholars;
for the erection or support of a school ; for the building
and repairs of a bridge ; for the making of roads ;
for the erection or support of a church ; for the repairs of
a church ;
for the benefit of ministers of religion ;
for the formation or support of a public garden. All these
bequests are void.
CHAPTER VIII
OF THE VESTING OF LEGACIES
119. Date of vesting of legacy when payment or possession
postponed. Where by the terms of a bequest the legatee is not entitled to
immediate possession of the thing bequeathed, a right to receive it at the
proper time shall, unless a contrary intention appear by the will, become
vested in the legatee on the testators death, and shall pass to the legatees
representatives if he dies before that time and without having received the
legacy, and in such cases the legacy is from the testators death said to be vested
in interest. Explanation. — An intention that a legacy to any person shall not
become vested in interest in him is not to be inferred merely from a provision
whereby the payment or possession of the thing bequeathed is postponed, or
whereby a prior interest therein is bequeathed to some other person, or whereby
the income arising from the fund bequeathed is directed to be accumulated until
the time of payment arrives, or from a provision that, if a particular event
shall happen, the legacy shall go over to another person.
Illustrations
(i)A bequeaths to B 100 rupees, to be paid to him at the
death of C. On As death the legacy becomes vested in interest in B, and if he
dies before C, his representatives are entitled to the legacy.
(ii)A bequeaths to B 100 rupees, to be paid to him upon his
attaining the age of 18. On As death the legacy becomes vested in interest in
B.
(iii)A fund is bequeathed to A for life, and after his death
to B. On the testators death the legacy to B becomes vested in interest in B.
(iv)A fund is bequeathed to A until B attains the age of 18
and then to B. The legacy to B is vested in interest from the testators death.
(v)A bequeaths the whole of his property to B upon trust to
pay certain debts out of the income, and then to make over the fund to C. At As
death the gift to C becomes vested in interest in him.
(vi)A fund is bequeathed to A, B and C in equal shares to be
paid to them on their attaining the age of 18, respectively, with a proviso
that, if all of them die under the age of 18, the legacy shall devolve upon D.
On the death of the testator, the shares vested in interest in A, B and C,
subject to be divested in case A, B and C shall all die under 18, and, upon the
death of any of them (except the last survivor) under the age of 18, his vested
interest passes, so subject, to his representatives.
120. Date of vesting when legacy contingent upon specified
uncertain event. — (1) A legacy bequeathed in case a specified uncertain event
shall happen does not vest until that event happens.
(2)A legacy bequeathed in case a specified uncertain event
rt. shall not happen does not vest until the happening of that event becomes
impossible.
(3)In either case, until the condition has been fulfilled,
the interest of the legatee is called contingent.
Exception. —Where a fund is bequeathed to any person upon
his attaining a particular age, and the will also gives to him absolutely the
income to arise from the fund before he reaches that age, or directs the
income, or so much of it as may be necessary, to be applied for his benefit,
the bequest of the fund is not contingent,
Illustrations
(i) A legacy is bequeathed to D in case A, B and C shall all
die under the age of 18. D has a contingent interest in the legacy until A, B
and C all die under 18, or one of them attains that age.
(ii) A sum of money is bequeathed to A "in case he
shall attain the age of 18", or "when he shall attain the age of
18". As interest in the legacy is contingent until the condition is
fulfilled by his attaining that age.
(iii) An estate is bequeathed to A for life, and after his
death to B if B shall then be living ; but if B shall not be then living to C.
A, B and C survive the testator. B and C each take a contingent interest in the
estate until the event which is to vest it in one or in the other has happened.
(iv) An estate is bequeathed as in the case last supposed. B
dies in the lifetime of A and C. Upon the death of B, C acquires a vested right
to obtain possession of the estate upon As death.
(v) A legacy is bequeathed to A when she shall attain the
age of 18, or shall marry under that age with the consent of B, with a proviso
that, if she neither attains 18 nor marries under that age with Bs consent, the
legacy shall go to C. A and C each take a contingent interest in the legacy. A
attains the age of 18. A becomes absolutely entitled to the legacy although she
may have married under 18 without the consent of B.
(vi) An estate is bequeathed to A until he shall marry and
after that event B. Bs interest in the bequest is contingent until the
condition is fulfilled by As marrying.
(vii) An estate is bequeathed to A until he shall take
advantage of any law for the relief of insolvent debtors, and after that event
to B. Bs interest in the bequest is contingent until A takes advantage of such
a law.
(viii) An estate is bequeathed to A if he shall pay 500
rupees to B. As interest in the bequest is contingent until he has paid 500
rupees to B.
(ix) A leaves his farm of Sultanpur Khurd to B, if B shall
convey his own farm of Sultanpur
Buzurg to C. Bs interest in the bequest is contingent until
he has conveyed the latter farm to C.
(x)A fund is bequeathed to A if B shall not marry C within
five years after the testators death, As interest in the legacy is contingent
until the condition is fulfilled by the expiration of the five years without Bs
having married C, or by the occurrence within that period of an event which
makes the fulfillment of the condition impossible.
(xi)A fund is bequeathed to A if B shall not make any
provision for him by will. The legacy is contingent until Bs death.
(xii)A bequeaths to B 500 rupees a year upon his attaining
the age of 18, and directs that the interest, or a competent part thereof,
shall be applied for his benefit until he reaches that age. The legacy is
vested.
(xiii)A bequeaths to B 500 rupees when he shall attain the
age of 18, and directs that a certain sum, out of another fund, shall be
applied for his maintenance until he arrives at that age. The legacy is
contingent.
121. Vesting of interest in bequest to such members of a
class as shall have attained particular age. Where a bequest is made only to
such members of a class as shall have attained a particular age, a person who
has not attained that age cannot have a vested interest in the legacy.
Illustration
A fund is bequeathed to such of the children of A as shall
attain the age of 18, with a direction that, while any child of A shall be
under the age of 18. the income of the share, to which it may be presumed he
will be .eventually entitled, shall be applied for his maintenance and
education. No child of A who is under the age of 18 has a vested interest in
the bequest.
CHAPTER IX
OF ONEROUS BEQUESTS
122.Onerous bequests. Where a bequest imposes an obligation
on the legatee, he can take nothing by it unless he accepts it fully
Illustration
A, having shares in (X), a prosperous joint stock company
and also shares in (y), a joint stock company in difficulties, in respect of
which shares heavy calls are expected to be made, bequeaths to B all his shares
in joint stock companies ; B refuses to accept the shares in (Y). He forfeits
the shares in (X).
123.One of two separate and independent bequests to same
person may be accepted, and other refuse. Where a will contains two separate
and independent bequests to the same person, the legatee is at liberty to
accept one of them and refuse the other, although the former may be beneficial
and the latter onerous
Illustration
A, having a lease for a term of years of a house at a rent
which he and his representatives are bound to pay during the term, and which is
higher than. the house can be let for, bequeaths to B the case and a sum of
money. B refuses to accept the lease. He will not by this refusal forfeit the
money.
CHAPTER X
OF CONTINGENT BEQUESTS
124. Bequest contingent upon specified uncertain event, so
time being mentioned for its occurrence. Where a legacy is given if a specified
uncertain event shall happen and no time is mentioned in the will for the
occurrence of that event, the legacy cannot take effect, unless such event
happens before the period when the fund bequeathed is payable or distribute
able.
Illustrations
(i)A legacy is bequeathed to A, and, in case of his death,
.to B. If A survives the testator, the legacy to B does not take effect.
(ii)A legacy is bequeathed to A, and, in case of his death
without children, to B. If A survives the testator or dies in his lifetime
leaving a child, the legacy to B does not take effect.
(iii)A legacy is bequeathed to A when and if he attains the
age of 18, and, in case of his death, to B. A attains the age of 18. The legacy
to B does not take effect.
(iv)A legacy is bequeathed to A for life, and, after his
death to B, and, "in case of Bs death without children", to C. The
words "in case of Bs death without children" are to be understood as
meaning "in case B dies without children during the lifetime of A".
(v)A legacy is bequeathed to A for life, and, after his
death to B, and, "in case of B. death", to C. The words "in case
of Bs death" are to be considered as meaning "in case B dies in the
lifetime of A".
125. Bequest to such of certain persons as shall be
surviving at some period not specified. Where a bequest is made to such of
certain persons as shall be surviving at some period, but the exact period is
not specified, the legacy shall go to such of them as are alive at the time of
payment or distribution, unless a contrary intention appears by the will.
Illustrations
(i)Property is bequeathed to A and B to be equally divided
between them, or to the survivor of them. If both A and B survive the testator,
the legacy is equally divided between them. If A dies before the testator, and
B survives the testator, it goes to B.
(ii)Property is bequeathed to A for life, and, after his
death, to B and C, to be equally divided between them, or to the survivor of
them. B dies during the life of A ; C survives A. At As death the legacy goes
to C.
(iii)Property is bequeathed to A for life, and after his
death to B and C, or the survivor, with a direction that, if B should not
survive the testator, his children are to stand in his place. C dies during the
life of the testator ;
B survives the testator, but dies in the life time of A. The
legacy goes to the representative
.of B.
(iv)Property is bequeathed to A for life, and, after his
death, to B and C, with a direction that, in case either of them dies in the
lifetime of A, the whole-shall go to the survivor. B dies in the lifetime of A.
Afterwards C dies in the lifetime of A. The legacy goes to the
representative of C.
CHAPTER XI
OF CONDITIONAL BEQUESTS
126.Bequest upon impossible condition. A bequest upon an
impossible condition is
void.
Illustrations
(i) An estate is bequeathed to A on condition that he shall
walk 100 miles in an hour. The bequest is void.
(ii) A bequeaths 500 rupees to B on condition that he shall
marry As daughter. As daughter was dead at the date of the will. The bequest is
void.
127.Bequest upon illegal or immoral condition. A bequest
upon a condition, the fulfillment of which would be contrary to law or to
morality, is void.
Illustrations
(i) A bequeaths 500 rupees to B on condition that he shall
murder C. The bequest is void. (ii) A bequeaths 5,000 rupees to his niece if
she will desert her husband. The bequest is void.
128.Fulfillment of condition precedent to vesting of legacy.
Where a will imposes a condition to be fulfilled before the legatee can take a
vested interest in the tiling bequeathed, the condition shall be considered to
have been fulfilled if it has been substantially complied with.
Illustrations
(i) A legacy is bequeathed to A on condition that he shall
marry with the consent of B, C, D
and E. A marries with the written consent of B, C is present
at the marriage. D sends a present to A previous to the marriage. : E has been
personally informed by A of his intentions, and has made no objection. A has
fulfilled the condition.
(ii) A legacy is bequeathed to A on condition that he shall
marry with the consent of B, C and D. D dies. A marries with the consent of B
and C. A has fulfilled the condition.
(iii) A legacy is bequeathed to A on condition that he shall
marry with the consent of B, C and D. A marries in the lifetime of B, C and D,
with the consent of B and C only. A has not fulfilled the condition.
(iv) A legacy is bequeathed to A on condition that he shall
marry with the consent of B, C and D. A obtains the unconditional assent of B,
C and D to his marriage with E. Afterwards B, C and D capriciously retract
their consent. A marries E. A has fulfilled the condition.
(v) A legacy is bequeathed to A on condition that he shall
marry with the consent of B, C and D. A marries without the consent of B, C and
D but obtains their consent after the marriage. A has not fulfilled the
condition.
(vi) A makes his will whereby he bequeaths a sum of money to
B if B shall marry with the consent of As executors. B marries during the
lifetime of A, and A afterwards expresses his approbation of the marriage. A
dies. The bequest to B takes effect.
(vii) A legacy is bequeathed to A if he executes a certain document
within a time specified in the will. The document is executed by A within a
reasonable time, but not within the time specified in the will. A has not
performed the condition, and is not entitled to receive the legacy.
129.Bequest to A and on failure of prior bequest to B. Where
there is a bequest to one person and a bequest of the same thing to another, if
the prior bequest shall fail, the second bequest shall take effect upon the
failure of the prior bequest although the failure may not have occurred in the
manner contemplated by the testator.
Illustrations
(i) A bequeaths a sum of money to his own children surviving
him, and, they all die under 18, to B A dies without having sever had a child.
The bequest to B takes effect.
(ii) A bequeaths a sum of money to B, on condition that he
shall execute a certain document within three months after As death, and, if he
should neglect to do so, to C. B dies in the testators lifetime. The bequest to
C takes effect.
130.When second bequest not to take effect on failure of
first. Where the will shows an intention that the second bequest shall take
effect only in the event of the first bequest failing in a particular manner,
the second bequest shall not take effect, unless the prior bequest fails in
that particular manner.
Illustration
A makes a bequest to his wife, but in case she should die in
his lifetime, bequeaths to B that which he had bequeathed to her. A and his
wife perish together, under circumstances which make it impossible to prove
that she died before him ; the bequest to B does not take effect.
131.Bequest over, conditional upon happening or not
happening of specified uncertain event. — (1) A bequest may be made to any
person with the condition super added that, in case a specified uncertain event
shall happen, the thing bequeathed shall go
to another person, or that in case a specified uncertain
event shall not happen, the thing bequeathed shall go over to another person.
(2) In each case the ulterior bequest is subject to the
rules contained in sections 120, 121, 122, 123, 124, 125, 126, 127, 129 and
130.
Illustrations
(i)A sum of money is bequeathed to A, to be paid to him at
the age of 18, and if he shall die before he attains that age, to B. A takes a
vested interest in the legacy subject to be divested and to go to B in case A
dies under 18.
(ii)An estate is bequeathed to A with a proviso that if A
shall dispute the competency of the testator to make a will, the estate shall
go to B. A disputes the competency of the testator to make a will. The estate
goes to B.
(iii)A sum of money is bequeathed to A for life, and, after
his death, to B ; but if B shall then be dead, leaving a son, such son is to
stand in the place of B. B takes a vested interest in the legacy, subject to be
divested if he dies leaving a son in As lifetime.
(iv)A sum of money is bequeathed to A and B, and if either
should die during the life of C, then to the survivor living at the death of C.
A and B die before C. The gift over cannot take effect, but the representative
of A takes one-half of the money, and the representative of B takes the other
half.
(v)A bequeaths to B the interest of a fund for life, and
directs the fund to be divided at her death equally among her three children,
or such of them as shall be living at her death. All the children of B die in
Bs lifetime. The bequest over cannot take effect, but the interests of the
children pass to their representatives.
132.Condition must be strictly fulfilled. An ulterior
bequest of the kind contemplated by section 131 cannot take effect, unless the
condition is strictly fulfilled.
Illustrations
(i) A legacy is bequeathed to A, with a proviso that, if he
marries without the consent of B, C sad D, the legacy shall go to E. D die.
Even if A marries without the consent of B and C, the gift to E does not take
effect.
(ii) A legacy is bequeathed to A, with a proviso that, if he
marries without the consent of B, the legacy shall go to C. A marries with the
consent of B. He afterwards becomes a widower and marries again without the
consent of B. The bequest to C does not take effect.
(iii) A- legacy is bequeathed to A, to be paid at 18; or
marriage, with a proviso that, if A dies under 18 or marries without the
consent of B, the legacy shall go to C. A marries under 18, without the consent
of B. The bequest to C takes effect.
133.Original bequest not affected by invalidity of second.
If the ulterior bequest be not valid the original bequest-is not affected by
it.
Illustrations
(i) An estate is bequeathed to A for his life with condition
super added that, if he shall not on a given day walk 100 miles in an hour, the
estate shall go to B. The condition being void, A retains his estate as if no
condition had been inserted in the will.
(ii) An estate is bequeathed to A for her life and, if she do
not desert her husband, to D. A is entitled to the estate during her life as if
no condition had been inserted in the will.
(iii) An estate is bequeathed to A for life, and, if he
marries, to the eldest son of B for life. B, at the date of the testators death,
had not had a son. The bequest over is void under section 105, and A is
entitled to the estate during his life. . .
134.Bequest conditioned that it shall case to have effect in
a case specified uncertain event shall happen, or not happen. A bequest may be
made with the condition super added that it shall cease to have effect in case
a specified uncertain event shall happen, or in case a specified uncertain
event shall not happen.
Illustrations
(i)An estate is bequeathed to A for his life, with a proviso
that, in case he shall cut down a certain wood, the bequest shall cease to have
any effect. A cuts down the wood. He loses his life-interest in the estate.
(ii)An estate is bequeathed to A, provided that, if he
marries under the age of 25 without the consent of the executors named in the
will, the estate shall cease to belong to him. A marries under 25 without the
consent of the executors. The estate ceases to belong to him.
(iii)An estate is bequeathed to A, provided that, if he
shall not go to England within three years after the testators death, his
interest in the estate shall cease. A does not go to England within the time
prescribed. His interest in the estate ceases.
(iv)An estate is bequeathed to A, with a proviso that, if
she becomes a nun, she shall cease to have any interest in the estate. A
becomes a nun. She loses her interest under the will.
(v)A fund is bequeathed to A for life, and, after his death,
to B, if B shall be then living, with a proviso that, if B shall become a nun,
the bequest to her shall cease to have any effect. B becomes a nun in the
life-time of A. She thereby loses her contingent interest in the fund.
135.Such condition must not be invalid under section 120. In
order that a condition that a bequest shall cease to have effect may be valid,
it is necessary that the event to which it relates be one which could legally
constitute the condition of a bequest as contemplated by section 120.
136.Result of legatee rendering impossible or indefinitely
postponing act for which not time specified, and on non-performance of which
subject matter to go over. Where a bequest is made with a condition superadded
that, unless the legatee shall perform a certain act, the subject-matter of the
bequest shall go to another person, or the bequest shall cease to have effect
but no time is specified for the performance of the act ; if the legatee takes
any step which renders impossible or indefinitely postpones the performance of
the act required, the legacy shall go as if the legatee had died without
performing such act.
Illustrations
(i) A bequest is made to A, with a proviso that, unless he
enters the Army, the legacy shall go over to B. A takes Holy Orders, and
thereby renders it impossible that he should fulfil the condition. B is
entitled to receive the legacy.
(ii) A bequest is made to A, with a proviso that it shall
cease to have any effect if he does not marry Bs daughter. A marries a stranger
and thereby indefinitely postpones the fulfillment of the conditions. The
bequest ceases to have effect
137.Performance of condition, precedent or subsequent,
within specified time further time in case of fraud. Where the will requires an
act to be performed by the legatee within a specified time, either as a
condition to be fulfilled before the legacy is enjoyed, or as a condition upon
the non-fulfillment of which the subject-matter of the bequest is to go over to
another person or the bequest is to cease to have effect, the act must be
performed within the time specified, unless the performance of it be prevented
by fraud, in which case such further time shall be allowed as shall be
requisite to make up for the delay caused by such fraud.
CHAPTER XII
OF BEQUESTS WITH DIRECTIONS AS TO APPLICATION OR ENJOYMENT.
138. Direction that fund be employed in particular manner following absolute
bequest of same to or for benefit of any person. Where a fund is bequeathed
absolutely to or for the benefit of any person, out the will
contains a direction that it snail i be applied or enjoyed in a particular
manner, the legatee shall be entitled to receive the fund as if the will had
contained no such direction,
Illustration
A sum of money is bequeathed towards purchasing a country
residence a for A, or to purchase an annuity for A, or to place A in any
business. A chooses to receive the legacy in money. He is entitled to do so.
139. Direction that mode of enjoyment of absolute bequest is
to be restricted, to secure specified benefit for legatee. Where a testator
absolutely bequeaths a fund, so as to f sever it from his own estate but
directs that the mode of enjoyment of it by the legatee shall be restricted so
as to secure a specified benefit for the legatee ; if that benefit cannot be
obtained for the legatee, the fund belongs to him as if the will had contained
no such direction.
Illustrations
(i)A bequeaths the residue of his property e divided equally
among his daughters, and directs that the shares of the daughters shall be
settled upon themselves respectively for life and be paid to their children
after their death. All the daughters die unmarried. The representatives of each
daughter are entitled to her share of the residue.
(ii)A directs his trustees to raise a sum of money for his
daughter, and he then directs that they shall invest the fund and pay the
income arising from it to her during her life, and divide the principal among
her children after her death. The daughter dies without having ever had a
child. Her representatives are entitled to the fund.
140. Bequest of fund for certain purposes, some of which
cannot be fulfilled. Where a testator does not absolutely bequeath a fund, so
as to sever it from his own estate, but gives it for certain purposes, and part
of those purposes cannot be fulfilled, the fund, or so much of it as has not
been exhausted upon the objects contemplated by the will; remains a part of the
estate of the testator.
Illustrations
(i) A directs that his trustees shall invest a sum of money
in a particular way, and shall pay the interest to his son for life, and at his
death shall divide the principal among his children. The son dies without
having ever had a child. The fund, after the sons death, belongs to the estate
of the testator.
(a) A bequeaths the residue of his estate, to be divided
equally among his daughters, with a direction that they are to have the
interest only during their lives, and that at their decease the fund shall go
to their children. The daughters have no children. The fund belongs to the
estate of the testator.
CHAPTER XIII
OF BEQUESTS TO AN EXECUTOR
141. Legatee named as executor cannot take unless he shows
intention to act as executor. If a legacy is bequeathed to a person who is
named an .executor of the will, he shall not take the legacy, unless he proves
the will or otherwise manifests an intention to act as executor.
Illustration
A legacy is given to A, who is named an executor. A orders
the funeral according to the directions contained in the will, and dies a few
days after the testator, without having proved the will. A has manifested an
intention to act as executor.
CHAPTER XIV
OF SPECIFIC LEGACIES
142. Specific legacy defined. Where a testator bequeaths to
any person a specified part of his property, which is distinguished from all
other parts of his property, the legacy is said to be specific.
Illustrations
(i) A bequeaths to B-
"the diamond ring presented to me by C" : "my
gold chain" :
"a certain bale of wool" : "a certain piece
of cloth" :
"all my household goods which shall be in or about my
dwelling-house in M Street, in Karachi, at time of my death" :
"the sum of 1,000 rupees in a certain chest" :
"the debt which B owes me":
"all my bills ,bonds and securities belonging to me
lying in my lodgings in Karachi" : "all my furniture in my house in
Karachi" :
"all my goods on board a certain ship now lying in the
river Indus" : "2,000 rupees which I have m the hands of C" :
"the money due to me on the bond of D" : "my
mortgage on the Rahimyarkhan factory" :
"one-half of the money owing to me on my mortgage of
Rahimyarkhan factory" : "1,000 rupees, being part of a debt due to me
from C" :
"my capital stock of 1,000. in East India Stock" :
"my promissory notes of the Federal Government for
10,000 rupees in their 4 per cent. loan" :
"all such sums of money as my executors may, after my
death , receive in respect of the debt due to me from the insolvent firm of
D and Company" :
"all the wine which I may have in my cellar at the time
of my death" : "such of my horses as B may select" :
"all my shares in the National Bank of Pakistan" :
"all my shares in the National Bank of Pakistan which I
may possess at the time of my death" :
"all the money which T have in the 5-1/2 per cent. loan
of the federal Government" : "all the Government securities I shall
be entitled to at the time of my decease". Each of these legacies is specific.
(ii)A, having Government promissory notes for 10,000 rupees,
bequeaths to his executors "Government promissory notes for 10,000 rupees
in trust to sell" for the benefit of B. The legacy is specific.
(iii)A having property at Peshawar, and also in other
places, bequeaths to B all his property at Peshawar. The legacy is specific.
(iv)A bequeaths to B —
his house in Karachi :
his zamindari of Rahimyarkhan: his taluq of Nawabshah :
his lease of the indigo-factory of Salkya :
an annuity of 500 rupees out of the rents of his zamindari
of W.
A directs his zamindari of X to be sold, and the proceeds to
be invested for the benefit of B. Each of these bequests is specific.
(v)A by his will charges his zamindari of Y with an annuity
of 1,000 rupees to C during his life, and subject to this charge he bequeaths
the zamindari to D. Each of these bequests is specific.
(vi)A bequeaths a sum of money —
to buy a house in Karachi for B :
to buy an estate in zila Peshawar for B : to buy a diamond
ring for B :
to buy a horse for B :
to be invested in shares in the National Bank of Pakistan
for B : to be invested in Government securities for B.
A bequeaths to B — a diamond ring :
a horse" :
10,000 rupees worth of Government securities" : an
annuity of 500 rupees" :
2,000 rupees to be paid in cash" :
so much money a$ will produce 5,000 rupees four per cent.
Government securities". These bequests arc not specific.
(vii) A, having property in England and property in
Pakistan, bequeaths a legacy to B, and directs that it shall be paid out of the
property which he may leave in Pakistan. He also bequeaths a legacy to C, and
directs that it shall be paid out of property which he may leave in England. No
one of these legacies is specific.
143.Bequest of certain sum where stock, etc., in which
invested are described.
Where a certain sum is bequeathed, the legacy is not
specific merely because the stock, funds or securities in which it is invested
are described in the will.
Illustration
A bequeaths to B —
"10,000 rupees of my funded property" :
"10,000 rupees of my property now invested in shares of
the National Bank of Pakistan" : "10,000 rupees, at present secured
by mortgage of Rahimyarkhan factory".
No one of these legacies is specific.
144.Bequest of stock where testator had, at date of will,
equal or greater amount of stock of same kind. Where a bequest is made in
general terms of a certain amount of
any kind of stock, the legacy is not specific merely because
the testator was, at the date of hi will, possessed of stock of the specified
kind, to an equal or greater amount than the r amount bequeathed. A bequeaths
to B 5,000 rupees five per cent. Government securities. A had at the date of
the will five per cent. Government securities for 5,000 rupees. The legacy is
not specific.
145.Bequest of money where not payable until part of
testators property disposed of in certain way. A money legacy is not specific
merely because the will directs its payment to be postponed until some part of
the property of the testator has been reduced to a certain form, or remitted to
a certain place.
Illustration
A bequeaths to B 10,000 rupees and directs that this legacy
shall be paid as soon as A’s property in India shall be realised in England.
The legacy is not specific.
146.When enumerated articles not deemed specifically
bequeathed. Where a will contains a bequest of the residue of the testators
property alongwith an enumeration of some items of property not previously
bequeathed, the articles enumerated shall not be deemed to be specifically
bequeathed.
147.Retention, in form, of specific bequest to several
persons in succession. Where property is specifically bequeathed to two or more
persons in succession, it shall be retained in the form in which the testator
left it, although it may be of such a nature that its value is continually
decreasing.
Illustrations
(i) A, having lease of a house for a term of years, fifteen
of which were unexpired at the time of his death, has bequeathed the lease to B
for his life, and after Bs death to C. B is to enjoy the property as A left it,
although, if B lives for fifteen ms, C can take nothing under the bequest.
(ii) A, having an annuity during the life of B, bequeaths it
to C, for his life, and, after Cs death, to D. C is to enjoy the annuity as A
left it, although, if B dies before D, D can take nothing under the bequest.
148.sale and investment of proceeds of property bequeathed
to two or more persons in succession. Where property comprised in a bequest to
two or more persons in succession is not specifically bequeathed, it shall, in
the absence of any direction to the contrary, be sold, and the proceeds of the
sale shall be invested in such securities as the High Court may by any general
rule authorise or direct, and the fund thus constituted shall be enjoyed by the
successive legatees according to the terms of the will.
Illustration
A, having a lease for a term of years, bequeaths ail his
property to B for life, and, after Bs death, to C. The lease must be sold, the
proceeds invested as stated in this Motion and the annual income arising from
the fund is to be paid to B for life. At Bs death the capital of the fund is to
be paid to C
149.Where deficiency of assets to pay legacies, specific
legacy not to abate with general legacies. If there is a deficiency of assets to
pay legacies, a specific legacy is not liable to abate with the general
legacies.
CHAPTER XV
OF DEMONSTRATIVE LEGACIES
150. Demonstrative legacy defined. Where a testator
bequeaths a certain sum of money, or a certain quantity of any other commodity,
and refers to a particular fund or stock so as to constitute the same the
primary fund or stock out of which payment is lo be made, the legacy is said to
be demonstrative.
Explanation. —The distinction between a specific legacy and
a demonstrative legacy consists in this, that — where specified property is
given to the legatee, the legacy is specific ; where the legacy is directed to
be paid out of specified property, it is demonstrative.
Illustrations
(i)A bequeaths to B 1,000 rupees, being part of a debt due
to him from W. He also bequeaths to C 1,000 rupees to be paid out of the debt
due to him from W. The legacy to B is specific, the legacy to C is
demonstrative.
(ii)A bequeaths to B —
"ten bushels of the corn which shall grow in my field
of Green Acre" :
"80 chests of the indigo which shall be made at my
factory of Rahimyarkhan" : "10,000 rupees out of my five per cent.
promissory notes of the Federal Government": "an annuity of 500
rupees "from my funded property" :
"1,000 rupees out of the sum of 2,000 rupees due to me
by C" :
an annuity, and directs it to be paid "out of the rents
arising from my taluk of Nawabshah" .
(iii) A bequeaths to B —
"10,000 rupees out of my estate at Nawabshah", or
charges it on his estate at Nawabshah : "10,000 rupees, being my share of
the capital embarked in a certain business",
Each of these bequests is demonstrative.
151. Order of payment when legacy directed to be paid out of
fund the subject of specific legacy. Where a portion of a fund is specifically
bequeathed and a legacy is directed to be paid out of the same fund, the
portion specifically bequeathed shall first be raid to the legatee and the
demonstrative legacy shall be paid out of the residue of the fund and, so far
as the residue shall be deficient, out of the general assets of the testator.
Illustration
A bequeaths to B 1,000 rupees, being part of a debt due to
him from W. He also bequeaths to C 1,000 rupees to be paid out of the debt due
to him from W. The debt due to A from W is only 1,500 rupees o these 1,500 rupees,
1,000 rupees belong to B, and 500 rupees are to be paid to C. C is also to
receive 500 rupees out of the general assets of the testator.
CHAPTER XVI
OF ADEMPTION OF LEGACIES
152.Ademption explained. If anything which has been
specifically bequeathed does not belong to the testator at the time of his
death, or has been converted into property of a different kind, the legacy is a
deemed : that is, it cannot take effect, by reason of the subject-matter having
been withdrawn from the operation of the will.
Illustrations
(i) A bequeaths to B —
the diamond ring presented to me by C" : my gold
chain" :
a certain bale of wool" : a certain piece of
cloth" :
all my household goods which shall be in or about my
dwelling-house in M Street in Sahiwal, at the time of my death" ;
A in his lifetime, —
sells or gives away the ring: converts the chain into a cup:
converts the wool into cloth : makes the cloth into a garment :
takes another house into which he removes all his goods.
Each of these legacies is adeemed. (ii) A bequeaths to B — "the sum of
1,000 rupee in a certain chest" :
"all the horses in my stable".
At the death of A, no money is found in the chest, and no
horses in the stable. The legacies are adeemed.
(ii) A bequeaths to B certain bales of goods. A takes the
goods with him on a voyage. The ship and goods are lost at sea, and A is
drowned. The legacy is adeemed.
153.Non Ademption of demonstrative legacy. A demonstrative
legacy is not adeemed by reason that the property on which it is charged by the
will does not exist at the time of the death of the testator, or has been
converted into property of a different kind, but it shall in such case be paid
out of the general assets of the testator.
154.Ademption of specific bequest of right to receive
something from third party.
Where the thing specifically bequeathed is the right to
receive something of value from a
third party, and the testator
himself receives it. the bequest is adeemed.
Illustrations
(i) A bequeaths to B —
"the debt which C owes me" ;
"2,000 rupees which I have in the hands of D" :
"the money due to me on the bond of E" :
"my mortgage on the Rahimyarkhan factory".
All these debts arc extinguished in A's lifetime, some with
and some without his consent. All the legacies are adeemed.
(if) A bequeaths to B his interest in certain policies of
life assurance. A in his lifetime receives the amount of the policies. The
legacy is adeemed.
155.Ademption pro tanto by testators receipt of part of
entire thing specifically bequeathed. The receipt by the testator of a part of
an entire thing specifically bequeathed shall operate as an Ademption of the
legacy to the extent of the sum so received.
Illustration
A bequeaths to B "the debt due to me by C". The
debt amounts to 10,000 rupees. C pays to A 5,000 rupees the one-half of the
debt. The legacy is revoked by Ademption, so far as regards the 5,000 rupees
received by A.
156.Ademption Pro tanto by testator’s receipt of portion of
entire fund of which portion has been specifically bequeathed. If a portion of
an entire fund or stock is specifically bequeathed, the receipt by the testator
of a portion of the fund or stock shall operate as an ademption only to the
extent of the amount so received; and the residue of the fund or stock shall be
applicable to the discharge of the specific legacy.
Illustration
A bequeaths to B one-half of the sum of 10,000 rupees due to
him from W. A in his lifetime receives 6,000 rupees, part of the 10,000 rupees-
The 4,000 rupees which are due from W to A at the time of his death belong to B
under the specific bequest.
157.Order of payment where portion of fund specifically
bequeathed to one legatee, and legacy charged on same fund to another, and,
testator having received portion of that fund, remainder insufficient to pay
both legacies. Where a portion of a fund is specifically bequeathed to one
legatee, and a legacy charged on the same fund is bequeathed to another
legatee, then, if the testator receives a portion of that fund, and the
remainder of the fund is insufficient to pay both the specific and the
demonstrative legacy, the specific legacy shall be paid first, and the residue
(if any) of the fund shall be applied so far as it will extend in payment of
the demonstrative legacy, and the rest of the demonstrative legacy shall be paid
out of the general assets of the testator.
Illustration
A bequeaths to B 1,000 rupees, part of the debt of 2,000
rupees due to him from W. He also bequeaths to C 1,000 rupees to be paid out of
the debt due to him from W. A afterwards receives 500 rupees, part of that
debt, and dies leaving only 1,500 rupees due to him from W. Of these 1,500
rupees, 1,000 rupees belong to B, and 500 rupees are to be paid to C. C is also
to receive 500 rupees out of the general assets of the testator.
158.Ademption where stock, specifically bequeathed, does not
exist at testators death. Where stock which has been specifically bequeathed
docs not exist at the testator's death, the legacy is adeemed.
Illustration
A bequeaths to B —
"my capital stock of 1,000 in East India Stock" :
"my promissory notes of the Federal Government for
10,000 rupees in their 4 per cent. loan". A sells the stock and the notes.
The legacy arc adeemed.
159.Ademption pro tanto where stock, specifically
bequeathed, exists in part only at testators death. Where stock which has been
specifically bequeathed exists only in part at the testator's death, the legacy
is adeemed so far as regards that part of the stock - which has ceased to
exist.
Illustration
A bequeaths to B his 10,000 rupees in the 5-1/2 per cent.
loan of the Federal Government, A sells one-half of his 10,000 rupees in the
loan in question. One-half of the legacy is adeemed.
160.Non ademption of specific bequest of goods described as
connected with certain place, by reason of removal. A specific bequest of goods
under a description connecting them with a certain place is not adeemed by
reason that they have been removed from such place from any temporary cause, or
by fraud, or without the knowledge or sanction of the testator.
Illustrations
(i) A bequeaths to B "all my household goods which
shall be in or about my dwelling-house in Faisalabad at the time of my
death". The goods are removed from the house to save them from fire. A
dies before they arc brought back.
(ii) A bequeaths to B "all my household goods which
shall be in or about my dwelling-house in Faisalabad at the time of my
death". During A's absence upon a journey, the whole of t lie goods arc
removed from the house. A dies without having sanctioned their removal. Neither
of these legacies is adeemed.
161.When removal of thing bequeathed does not constitute
ademption. The removal of the thing bequeathed from the place in which it is
stated in the will to be situated does not constitute an ademption, where the
place is only referred to in order to complete the description of what the
testator meant to bequeath.
Illustrations
(i) A bequeaths to B "all the bills, bonds and other
securities for money belonging to me now lying in my lodgings in Karachi
". At the time of his death, these effects had been removed from his
lodgings in Karachi.
(ii) A bequeaths to B all his furniture then in his house in
Karachi. The testator has a house at Karachi and another at Quetta ,in which he
lives alternately, being possessed of one set of furniture only which he
removes with himself to each house. At the time of his death the furniture is
in the house at Quetta.
(iii) A bequeaths to B all his goods on board a certain ship
then lying in the river Indus. The goods are removed by As directions to a
warehouse, in which they remain at the time of As death.
No one of these legacies u revoked by ademption.
162.When thing bequeathed is a valuable to be received by
testator from third person ; and testator himself, or his representative,
receives it. Where the thing bequeathed is not the right to receive something
of value from a third person, but the money or other commodity which may be
received from the third person by the testator himself or by his
representatives, the receipt of such sum of money or other commodity by the
testator shall not constitute an ademption ; but if he mixes it up with the
general mass
of his property, the legacy is adeemed.
Illustration
A bequeaths to B whatever sum may be received from his claim
on C. A receives the whole of his claim on C, and sets it apart from the
general mass of his property. The legacy is not adeemed.
163.Change by operation of law of subject of specific
bequest between date of will and testators death. Where a thing specifically
bequeathed undergoes a change between the date of the will and the testators
death, and the change takes place by operation of law, or in the course of
execution of the provisions of any legal instrument under which the thing
bequeathed was held, the legacy is not adeemed by reason of such change.
Illustrations
(i) A bequeaths to B "all the money which I have in the
5-1/2 per cent. loan of the "Federal Government". The securities for
the. 5-1/2 per cent. loan are converted during As lifetime into 5 per cent.
stock.
(ii) A bequeaths to B the sum of 2,000/. invested in
Consoles in the names of trustees for A. The sum of 2,000/. is transferred by
the trustees into As own name.
(iii) A bequeaths to B the sum of 10,000 rupees in
promissory notes of the Federal Government which he has power under his marriage
settlement to dispose of by will. Afterwards, in As lifetime, the fund is
converted into Consoles by virtue of an authority contained in the settlement.
No one of these legacies has been adeemed.
164.Change of subject without testators knowledge. Where a
thing specifically bequeathed undergoes a change between the date of the will
and the testators death, and the change takes place without the knowledge or
sanction of the testator, the legacy is not adeemed.
Illustrations
A bequeaths to B "all my 3 per cent Consols". The
Consols arc, without As knowledge, sold by his agent, and the proceeds
converted into East India Stock. This legacy is not adeemed.
165.Stock specifically bequeathed lent to third party on
condition that it be replaced. Where stock which has been specifically
bequeathed is lent to a third party on condition that it shall be replaced, and
it is replaced accordingly, the legacy is not adeemed.
166.Stock specifically bequeathed sold but replaced, and
belonging to testator at his death. Where stock specifically bequeathed is
sold, and an equal quantity of the same stock is afterwards purchased and
belongs to the testator at his death, the legacy is not adeemed.
CHAPTER XVII
OF THE PAYMENT OF LIABILITIES IN RESPECT OF THE SUBJECT OF A
BEQUEST. 167. Non – liability of executor to exonerate specific legatees. — (1)
Where property specifically bequeathed is subject at the death of the testator
to any pledge, lien or incumbrance created by the testator himself or by any
person under whom he claims, then, unless a contrary intention appears by the
will, the legatee, if he accepts the bequest, shall accept it subject to such
pledge or incumbrance, and shall as between himself and the testators estate)
be liable to make good the amount of such pledge or incumbrance.
(2) A contrary intention shall not be inferred from any
direction which the will may contain for the payment of the testators debts
generally.
Explanation. —A periodical payment in the nature of
land-revenue or in the nature of rent is
not such an incumbrance as is contemplated by this section.
Illustrations
(i)A bequeaths to B the diamond ring given him by C. At As
death the ring is held in pawn by D, to whom it has been pledged by A. It is
the duty of As executors, if the state of the testators assets will allow them,
to allow B to redeem the ring.
(ii)A bequeaths to B a zamindari which at As death is
subject to a mortgage for 10,000 rupees ; and the whole of the principal sum,
together with interest to the amount of 1,000 rupees, is due at As death. B, if
he accepts the bequest, accepts it subject to this charge, and is liable, as
between himself and As estate, to pay the sum of 11,000 rupees thus due.
168.Completion of testators title to things bequeathed to be
at cost of his estate.
Where anything is to be done to complete the testators title
to the thing bequeathed, it is to be done at the cost of the testators estate.
Illustrations
(i) A, having contracted in general terms for the purchase
of a piece of land at a certain price, bequeaths to B, and dies before he has
paid the purchase-money. The purchase- money must be made good out of As
assets.
(ii) A, having contracted for the purchase of a piece of
land for a certain sum of money, one-half of which is to be paid down and the
other half secured by mortgage of the land, bequeaths it to B, and dies before
he has paid or secured any part of the purchase-money. One-half of the
purchase-money must be paid out of As assets.
169.Exoneration of legatees immoveable property for which
land revenue or rent payable periodically. Where there is a bequest of any
interest in immoveable property in respect of which payment in the nature of
land-revenue or in the nature of rent has to be made periodically, the estate
of the testator shall (as between such estate and the legatee) make good such
payments or a proportion of them, as the case may be, up to the day of his
death.
Illustration
A bequeaths to B a house, in respect of which 365 rupees are
payable annually by way of rent. A pays his rent at the usual time, and dies 25
days after. As estate will make good 25 rupees in respect of the rent.
170.Exoneration of specific legatees stock in joint stock
company. In the absence of any direction in the will, where there is a specific
bequest of stock in a joint stock company, if any call or other payment is due
from the testator at the time of his death in respect of the stock, such call
or payment shall, as between the testators estate and the legatee, be borne by
the estate ; but, if any call or other payment becomes due in respect of such
stock after the testators death, the same shall, as between the testators
estate and the legatee, be borne by the legatee, if he accepts the bequest.
Illustrations
(i) A bequeaths to B his shares in a certain railway. At As
death there was due from him the sum of 100 rupees in respect of each share,
being the amount of a call which had been duly made, and the sum of live rupees
in respect of each share, being the amount of interest which had accrued due in
respect of the call. These payments must be borne by As estate. (ii) A has
agreed to take 50 shares in an intended joint stock company, and has contracted
to pay up 100 rupees in respect of each share, which sum must be paid before
his title to the shares can be completed. A bequeaths these shares to B. The
estate of A must make good the payments which were necessary to complete As
title.
(iii) A bequeaths to B his shares in a certain railway. B
accepts the legacy. After As death, a call is made in respect of the shares. B must
pay the call.
(iv) A bequeaths to B his shares in a joint stock company. B
accepts the bequest.
Afterwards the affairs of the company are wound up, and each
shareholder is called upon for contribution. The amount of the contribution
must be borne by the legatee.
(v) A is the owner of ten shares in a railway company. At a
meeting held during his lifetime a call is made of fifty rupees per share,
payable by three installments. A bequeaths his shares to B, and dies between
the day fixed for the payment of the first and the day fixed for the payment of
the second installment, and without having paid the first installment. As
estate must pay the first installment and B, if he accepts the legacy, must pay
the remaining installments.
CHAPTER XVIII
OF BEQUESTS OF THINGS DESCRIBED IN GENERAL TERMS
171. Bequest of thing described in general terms. If there
is a bequest of something described in general terms, the executor must
purchase for the legatee what may reasonably be considered to answer the
description.
Illustrations
(i)A bequeaths to B a pair of carriage-horses or a diamond
ring. The executor must provide the legatee with such articles if the state of
the assets will allow it.
(ii)A bequeaths to B "my pair of carriage-horses".
A had no carriage-horses at the time of his death. The legacy fails.
CHAPTER XIX
OF BEQUESTS OF THE INTEREST OR PRODUCE OF A FUND
172. Bequest of interest or produce of fund. Where the
interest or produce of a fund is bequeathed to any person, and the will affords
no indication of an intention that the enjoyment of the bequest should be of
limited duration, the principal, as well as the interest, shall belong to the
legatee.
Illustrations
(i)A bequeaths to B the interest of his 5 per cent.
promissory notes of the Federal Government. There is no other clause in the
will affecting those securities. B is entitled to As 5 per cent. promissory
notes of the Federal Government.
(ii)A bequeaths the interest of his 5-1/2 per cent.
promissory notes of the 1 Federal Government to B for his life, and after his
death to C. B is entitled to the interest of the notes during his life, and C
is entitled to the notes upon Bs death.
(iii)A bequeaths to B the rents of his lands at X. B is
entitled to the lands.
CHAPTER XX
OF BEQUESTS OF ANNUITIES
173.Annuity created by will payable for life only unless
contrary intention appears by will. Where an annuity is created by will, the
legatee is entitled to receive it for his life only, unless a contrary
intention appears by the will, notwithstanding that the annuity is directed to
be paid out of the property generally, or that a sum of money is bequeathed to
be invested in the purchase of it.
Illustrations
(i) A bequeaths to B 500 rupees a year. B is entitled during
his life to receive the annual sum of 500 rupees.
(ii) A bequeaths to B the sum of 500 rupees monthly. B is
entitled during his life to receive the sum of 500 rupees every month.
(iii)) A bequeaths an annuity of 500 rupees to B for life,
and on Bs death to C. B is entitled to an annuity of 500 rupees during his
life. C, if he survives B, is entitled to an annuity of
500rupees from Bs death until his own death.
174.Period of vesting where will directs that annuity be
provided out of proceeds of property, or out of property generally, or where
money bequeathed to be invested in purchase of annuity. Where the will directs
that an annuity shall be provided for any person out of the proceeds of
property, or out of property generally, or where
money is bequeathed to be invested in the purchase of any
annuity for any person, on the testators death, the legacy vests in interest in
the legatee, and he is entitled at his option to have an annuity purchased for
him or to receive the money appropriated for that purpose by the will.
Illustrations
(i)A by his will directs that his executors shall, out of
his property, purchase an annuity of 1,000 rupees for B. B is entitled at his
option to have an annuity of 1,000 rupees for his life purchased for him or to
receive such a sum as will be sufficient for the purchase of such an annuity.
(ii)A bequeaths a fund to B for his life, and directs that
after Bs death, it shall be laid out in the purchase of an annuity for C. B and
C survive the testator. C dies in Bs lifetime. On Bs death the fund belongs to
the representative of C.
175.Abatement of annuity. Where an annuity is bequeathed,
but the assets of the testator are not sufficient to pay all the legacies given
by the will, the annuity shall abate in the same proportion as the other
pecuniary legacies given by the will.
176.Where gift of annuity and residuary gift, whole annuity
to be first satisfied.
Where there is a gift of an annuity and a residuary gift,
the whole of the annuity is to be satisfied before any part of the residue is
paid to the residuary legatee, and, if necessary, the capital of the testators
estate shall be applied for that purpose.
CHAPTER XXI
OF LEGACIES TO CREDITORS AND PORTIONERS
177.Creditor prima fade entitled to legacy as well as debt.
Where a debtor bequeaths a legacy to his creditor, and it does not appear from
the will that the legacy is meant as a satisfaction of the debt, the creditor
shall be entitled to the legacy, as well as to the amount of the debt.
178.Child prima facie entitled to legacy as well as portion.
Where a parent, who is under obligation by contract to provide a portion for a
child, fails to do so, and afterwards bequeaths a legacy to the child, and does
not intimate by his will that the legacy is meant as a satisfaction of the
portion, the child shall be entitled to receive the legacy, as well as the
portion.
Illustration
A, by articles entered into in contemplation of his marriage
with B, covenanted that he would pay to each of the daughters of the intended
marriage a portion of 20,000 rupees on her marriage. This covenant having been
broken, A bequeaths 20,000 rupees to each of the married daughters of himself
and B. The legatee are entitled to the benefit of this bequest in addition to
their portions.
179.No ademption by subsequently provision for legatee. No
bequest shall be wholly or partially adeemed by a subsequent provision made by
settlement or otherwise for the legatee.
Illustrations
(i) A bequeaths 20,000 rupees to his son B. He afterwards
gives to B the sum of 20,000 rupees. The legacy is not thereby adeemed.
(ii) A bequeaths 40,000 rupees to B, his orphan niece whom
he had brought up from her infancy. Afterwards, on the occasion of Bs marriage,
A settles upon her the sum of 30,000 rupees. The legacy is not thereby
diminished.
CHAPTER XXII OF ELECTION
180.Circumstances in which election takes place. Where a
person, by his will, professes to dispose of something which he has no right to
dispose of, the person to whom the thing belongs shall elect either to confirm
such disposition or to dissent from it, and, in the latter case, he shall give
up any benefits which may have been provided for him by the will.
181.Devolution of interest relinquished b owner. 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.
182.Testators belief as to his ownership immaterial. 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 Bs 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 is 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 Pakistan 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.
183.Bequest for mans benefit how regarded for purpose of
election. A bequest for a persons 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 Bs debts. B must elect whether he will abide by the will, or keep
his farm of Sultanpur Khurd in opposition to it.
184.Person deriving benefit indirectly not put to election.
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
administrate); elects on behalf of Cs 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.
185.Person taking in individual capacity under will may in
other character elect to take in opposition. 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 Bs 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.
186.Exception to provisions of last six sections.
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 t 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 As 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 of 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.
187.When acceptance of benefit given by will constitutes
election to take under will. 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.
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
con- finned the bequest of Sultanpur Buzurg to C.
(ii) B, the eldest son of A, is the possessor of an estate
called Sultanpur. A bequeaths Sultanpur to C, and to B the residue of As
property. B having been informed by As 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.
188.Circumstances in which knowledge or waiver is presumed
or inferred. — (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 benefit 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.
189.When testators representatives may call upon legatee to
elect. If the legatee does not, within one year after the death of the
testator, signify to the testators 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.
190.Postponement of election in case of disability. In case
of disability the election shall be postponed until the disability ceases, or
until the election is made by some competent authority.
CHAPTER XXIII
OF GIFTS IN CONTEMPLATION OF DEATH
191. Property transferable by gift made in contemplation of
death. — (1) A man may dispose, by gift made in contemplation of death, of any
moveable property which he could dispose of by win.
(2)A gift said to be made in contemplation of death where a
man, who is ill and expects to die shortly of his illness, delivers to another
the possession of any moveable property to keep as a gift in case the donor
shall die of that illness.
(3)Such a gift may be resumed by the giver ; and shall not
take effect if he recovers from the illness during which it was made ; nor if
he survives the person to whom it was made. Illustrations
(i) A, being ill, and in expectation of death, delivers to B,
to be retained by him in case of As death, —
a watch:
a bond granted by C to A : a bank-note:
a promissory note of the Federal Government endorsed in
blank : a bill of exchange endorsed in blank :
certain mortgage-deeds.
A dies of the illness during which he delivered these
articles. Bis entitled to —
the watch:
the debt secured by Cs bond : the bank-note:
the promissory note of the Federal Government: the bill of
exchange :
the money secured by the mortgage-deeds.
(ii) A, being ill, and in expectation of death, delivers to
B the key of a trunk or the key of a warehouse in which goods of bulk belonging
to A are deposited, with the intention of giving him the control over the
contents of the trunk, or over the deposited goods, and desires him to keep
them in case of A’s death. A dies of the illness during which he delivered
these articles. B is entitled to the trunk and its contents or to As goods of
bulk in the warehouse. (iii) A, being ill, and in expectation of death, puts
aside certain articles in separate parcels and marks upon the parcels
respectively the names of B and C. The parcels are not delivered during the
life of A. A dies of the illness during which he set aside the parcels. B and C
are not entitled to the contents of the parcel.
PART VII
PROTECTION OF PROPERTY OF DECEASED
192. Person claiming right by succession to property of
deceased may apply for
relief against wrongful possession. — (1) If any person dies
leaving property, moveable or immoveable, any person claiming a right by
succession thereto or to any portion thereof, may make application to the
District Judge of the district where any part of the property is found or
situate for relief, either after actual possession has been taken by another
person, or when forcible means of seizing possession are apprehended.
(2) Any agent, relative or near friend, or the Court of
Wards in cases within their cognizance, may, in the event of any minor, or any
disqualified or absent person being entitled by succession to such property as
aforesaid, make the like application for relief.
193.Inquiry made by Judge. The District Judge to whom such
application is made shall, in the first place, examine the applicant on oath,
and may make such further inquiry, if any, as he thinks necessary as to whether
there is sufficient ground for believing that the party in possession or taking
forcible means for seizing possession has no lawful title, and that the
applicant, or the person on whose behalf he applies, is really entitled and is
likely to be materially prejudiced if left to the ordinary remedy of a suit,
and that the application is made bona fide.
194.Procedure. If the District Judge is satisfied that there
is sufficient ground for believing as aforesaid but not otherwise, he shall
summon the party complained of, and give notice of vacant or disturbed
possession by publication, and, after the expiration of a reasonable time,
shall determine summarily the right to possession (subject to a suit as
hereinafter provided) and shall deliver possession accordingly :
Provided that the judge shall have the power to appoint an
officer who shall take an inventory of effects, and seal or other-vise secure
the same, upon being applied to for the purpose,
Without delay, whether he shall have concluded the inquiry
necessary for summoning the party complained of or not.
195.Appointment of curator pending determination Proceeding.
If it further appears upon such inquiry as aforesaid that danger is to be
apprehended of the misappropriation or waste of the property before the summary
proceeding can be determined, and that the delay in obtaining security from the
party in possession or the insufficiency thereof is likely to expose the party
out of possession to considerable risk, provided he is the lawful owner, the
District Judge may appoint one or more curators whose authority shall continue
according to the terms of his or their respective appointments, and in no case
beyond the determination of the summary proceeding and the confirmation or
delivery of possession in consequence thereof:
Provided that, in the case of land, the Judge may delegate
to the Collector, or to any officer subordinate to the Collector, the power of
a curator:
Provided, further, that every appointment of a curator in
respect of any property shall be duly published.
196.Powers conformable on curator. The District Judge may
authorise the curator to take possession of the property either generally, or
until security is given by the party in possession, or until inventories of the
property have been made, or for any other purpose necessary for securing the
property from misappropriation or waste by the party in possession :
Provided that it shall be in the discretion of the Judge to
allow the party in possession to continue in such possession on giving security
or not, and any continuance in possession shall be subject to such orders as
the Judge may issue touching inventories, or the securing of deeds or other
effects.
197.Prohibition of exercise of certain powers by curators.
Payment of debts, etc., to curator. — (1) Where a certificate has been granted
under Part X or a grant of probate or letters of administration has been made,
a curator appointed under this Part shall not exercise any authority lawfully
belonging to the holder of the certificate or to the executor or administrator.
(2) All persons who have paid debts or rents to a curator
authorised by a Court to receive them shall be indemnified, and the curator
shall be responsible for the payment thereof to the person who has obtained the
certificate probate or letters of administration, as the case may be.
198.Curator to give security and may receive remuneration. —
(1) The District Judge shall take from the curator security for the faithful
discharge of his trust, and for rendering satisfactory accounts of the same as
hereinafter provided, and may authorise him to receive out of the property such
remuneration, in no case exceeding five per centum on the moveable property and
on the annual profits of the immoveable property, as the District Judge thinks
reasonable.
(2) All surplus money realized by the curator shall be paid
into Court, and invested in public securities for the benefit of the persons
entitled thereto upon adjudication of the summary proceeding.
(3) Security shall be required from the curator with all
reasonable dispatch, and, where it is practicable, shall be taken generally to
answer all cases for which the person may be afterwards appointed curator ; but
no delay in the taking of security shall prevent the Judge from immediately
investing the curator with the powers of his office.
199.Report form collector where estate includes revenue
paying land. — (1) Where the estate of the deceased person consists to wholly
or in part of land paying revenue to Government, in all matters regarding the
propriety of summoning the party in id. possession, of appointing a curator, or
of nominating individuals to that appointment, the District Judge shall demand
a report from the Collector, and the Collector shall thereupon furnish the
same:
Provided that in cases of urgency the Judge may proceed, in
the first instance, without such report.
(2) The Judge shall not be obliged to act in conformity with
any such report, but, in case of his acting otherwise than according to such
report, he shall immediately forward a statement of his reasons to the High
Court, and the High Court, if it is dissatisfied with such reasons, shall
direct the Judge to proceed conformably to the report of the Collector.
200.Institution and defence of suits. The curator shall be
subject to all orders of the District Judge regarding the institution or the
defence of suits, and ail suits may be instituted or defended in the name of
the curator on behalf of the estate:
Provided that an express authority shall be requisite in the
order of the curators appointment or the collection of debts or rents ; but
such express authority shall enable the curator to give a full acquittance for
any sums of money received by virtue thereof.
201.Allowances to apparent owners pending custody by
curator. Pending the custody of the property by the curator, The District Judge
may make such allowances to parties having a prima facie right thereto as upon
a summary investigation of the rights and circumstances of the parties
interested he considers necessary, and may, at his discretion, take security
for the repayment thereof with interest, in the event of the party being found,
upon the adjudication of the summary proceeding, not to be entitled thereto.
202.Accounts to be filed by curator. The curator shall file
monthly accounts in abstract, and shall, on the expiry of each period of three
months, if his administration lasts so long, and, upon giving up the possession
of the property, file a detailed account of his administration to the
satisfaction of the District Judge.
203.Inspection of accounts and right of interested part to
keep duplicate. — (1) The accounts of the curator shall be open to the
inspection of all parties interested ; and it shall be competent for any such
interested party to appoint a separate person to keep a duplicate account of
all receipts and payments by the curator.
(2) If it is found that the accounts of the curator are in
arrear, or that they are erroneous or incomplete, or if the curator does not
produce them whenever he is ordered to do so by the District Judge, he shall be
punishable with fine not exceeding one thousand rupees for every such default.
204.Bar to appointment of second curator for same property.
If the Judge of any district has appointed a curator, in respect of the whole
of the property of a deceased person, such appointment shall preclude the Judge
of any other district within the same Province from appointing any other
curator, but the appointment of a curator in respect of a portion of the
property of the deceased shall not preclude the appointment within the same
Province of another creator in respect of the residue or any portion thereof:
Provided that no Judge shall appoint a curator or entertain
a summary proceeding in respect of property which is the subject of a summary
proceeding previously instituted under this Part before another Judge;
Provided, further, that if two or more curators are
appointed by different Judges for several parts of an estate, the High Court
may make such order as it thinks fit for the appointment of one curator of the
whole property.
205.Limitation of time for application for curator. An
application under this Part to the District Judge must be made within six
months of the death of the proprietor whose property is claimed by right in
succession.
206.Bar to enforcement of Part against public settlement or
legal directions by deceased. Nothing in this Part shall be deemed to authorise
the contravention of any public act of settlement or of any legal directions
given by a deceased proprietor of any property for the possession of his
property after his decease in the event of minority or otherwise, and, in every
such case, as soon as the Judge having jurisdiction over the property of a
deceased person is satisfied of the existence of such directions, he shall give
effect thereto.
207.Court of Wards to be made curator in case of minors
having property subject to its jurisdiction. Nothing in this Part shall be
deemed to authorise any disturbance of the possession of a Court of Wards of
any property; and in case minor, or other disqualified person whose property i;
subject to the Court of Wards, is the party on whose behalf application is made
under this Part, the District Judge, if he determines to summon the party in
possession and to appoint a curator, shall invest the Court of Wards with the
curatorship of the estate pending the proceeding without taking security as
aforesaid : and if the minor or other disqualified person, upon the
adjudication of the summary proceeding, appears to be entitled to the property,
possession shall be delivered to the Court of Wards.
208.Saving of right to bring suit. Nothing contained in this
Part shall be any impediment to the bringing of a suit either by the party
whose application may have been. rejected
before or after the summoning of the party in possession, or
by the pary who may have been evicted from the possession under this Part.
209.Effect of decision of summary proceeding. The decision
of a District Judge in a summary proceeding under this part shall have no other
effect than that of settling the actual possession; but for this purpose it
shall be final, and shall not be subject to any appeal or review.
210.Appointment of public curators. The Provincial
Government may appoint public curators for any district or number of districts;
and the District Judge having jurisdiction shall nominate such public curators
in all cases where the choice of a curator is left discretionary with him under
this Part.
PART VIII
Character and property of executor or administrator as such.
REPRESENTATIVE TITLE TO PROPERTY OF DECEASED ON SUCCESSION
211.Character and property of executor or administrator as
such. — (1) The executor or administrator, as the case may be, of a deceased
person is his legal representative for all purposes, and all the property of
the deceased person vests in him as such.
(2) When the deceased was a Hindu, Muslim Buddhist, Sikh
Jaina, or Parsi, an exempted person, nothing herein contained shall vest in an
executor or administrator any property of the deceased person which would
otherwise have passed by survivorship to some other person.
212.Right to intestates property. — (1) No right to any part
of the property of a person who has died intestate can be established in any
Court of Justice, unless letters of administration have first been granted by a
Court of competent jurisdiction.
(2) This section shall not apply in the case of the
intestacy of a Hindu, Muslim, Buddhist, Sikh, Jaina, Parsi or Pakistan
Christian.
213.Right as executor or legatee when established. — (1) No
right as executor or legatee can be established in any Court of Justice, unless
a Court of competent jurisdiction in Pakistan has granted probate of the will
under which the right is clamed, or has granted letters of administration with
the will or with a copy of an authenticated copy of the will annexed.
(2) Sub-section (1) shall not apply in the case of wills
made by Muslims and Parsis, and shall only apply in the case of wills made by
any Hindu Buddhist, Sikh or Jaina such wills are of the classes specified in
clauses (a) and (b) of section 57.
214.Proof of representative title a condition precedent to
recovery through the Courts of debts from debtors of deceased persons. — (1) No
Court shall —
(a) pass a decree against a debtor of a deceased person for
payment of his debt to a person claiming on succession to be entitled to the
effects of the deceased i person or to any part thereof, or
(b) proceed, upon an application of a person claiming to be
so entitled, to execute against such a debtor a decree or order for the payment
of his debt,
except on the production, by the person so claiming, of —
(i) a probate or letters of administration evidencing the
grant to him of administration to the estate of the deceased, or
(ii) a certificate granted under section 31 or section 32 of
the Administrator Generals Act, 1913, and having the debt mentioned therein, or
(iii) a succession certificate granted under Part X and
having the debt specified therein, or
(v) a certificate granted under Sind Regulation No. VIII of
1827 and, if granted after the first day of May, 1889, having the debt
specified therein.
(2) The word "debt" in sub-section (1) includes
any debt except rent, revenue or profits payable in respect of land used for
agricultural purposes.
215.Effect on certificate of subsequent probate or letters
of administration. — (1) A grant of probate or letters of administration in
respect of an estate shall be deemed to supersede any certificate previously
granted under Part X Sind Regulation No. VIII of 1827, in respect of any debts
or securities included in the estate.
(2) When at the time of the grant of the probate or letters
any suit or other proceeding instituted by the holder of any such certificate
regarding any such debt or security is pending, the person to whom the grant is
made shall, on applying to the Court in which the suit or proceeding is
pending, be entitled 10 take the place of the holder of the certificate in the
suit or proceeding :
Provided that, when any certificate is superseded under this
section, all payments made to the holder of such certificate in ignorance of
such supersession shall be held good against claims under the probate or
letters of administration.
216.Grantee of probate or administration alone to sue, etc.,
until same revoked.
After any grant of probate or letters of administration, no
other than the person to whom the same may have been granted shall have power
to sue or prosecute any suit, or other wise act as representative of the
deceased, throughout the Province in which the same may have been granted,
until such probate or letters of administration ha or have been recalled or
revoked.
PART IX
PROBATE, LETTERS OF ADMINISTRATION AND ADMINISTRATION OF
ASSETS OF
DECEASED.
217. Application of Part. Save as otherwise provided by this
Act or by any other law for the time being in force, all grants of probate and
letters of administration with the will annexed and the administration of the
assets of the deceased in cases of intestate succession shall be made or
carried out, as the case may be, in accordance with the provisions of this
Part.
CHAPTER I
OF GRANT OF PROBATE AND LETTERS OF ADMINISTRATION 218. To
whom administration may be granted, where deceased is a Hindu,
Muhammadan, Buddhist, Sikh, Jaina or exempted person. — (1)
If the deceased has died intestate and was a Hindu; Muslim Buddhist, Sikh or
Jaina or an exempted person, administration of his estate may be granted to any
person who, according to the rules for the distribution of the estate
applicable in the case of such deceased, would be entitled to the whole or any
part of such deceased’s estate.
(2) When several such persons apply for such administration,
it shall be in the discretion of the Court to grant it to any one or more of
them.
(3) When no such person applies, it may be granted to a
creditor of the deceased.
219.Where deceased is not a Hindu, Muhammadan, Buddhist,
Sikh, Jaina or exempted person. If the deceased has died intestate and was not
a person belonging to any of the classes referred to in section 218, those who
are connected with him, either by marriage or by consanguinity, are entitled to
obtain letters of administration of his estate and effects in the order and
according to the rules hereinafter stated, namely : —
(a) If the deceased ha", left a widow, administration
shall be granted to the widow, unless the Court sees cause to exclude her,
either on the ground of some personal disqualification, or because she has no
interest in the e»tat» of the deceased.
Illustrations
(i) The widow is a lunatic or has committed adultery or has
been barred by her marriage settlement of all interest in her husband estate.
There is cause for excluding her from the administration.
(ii) "the widow has married again since the decease of
her husband. This is not good cause for her exclusion.
(b) If the Judge thinks proper, he may associate any person
or persons with the widow in the administration who would be entitled solely to
the administration if there were no widow.
(c) If there is no widow, or if the Court sees cause to exclude
the widow, it shall commit the administration to the person or persons who
would be beneficially entitled to the estate according to the rules for the
distribution of an intestates estate :
Provided that, when the mother of the deceased is one of the
class of persons so entitled, she shall be solely entitled to administration.
(d) Those who stand in equal degree of kindred to the
deceased are equally entitled to administration.
(e) The husband surviving his wife has the same right of
administration of her estate as the widow has in respect of the estate of her
husband.
(f) When there is no person connected with the deceased by
marriage or consanguinity who is entitled to letters of administration and
willing to act, they may be granted to a creditor.
(g) Where the deceased has left property in Pakistan letters
of administration shall be granted according to the foregoing rules,
notwithstanding that he had his domicile in a country in which the law relating
to testate and intestate succession differs from the law of Pakistan.
220.Effect of letters of administration. Letters of
administration entitle the administrator to all rights belonging to the
intestate as effectually as if the administration had been granted at the
moment after his death.
221.Acts not validated by administration. Letters of
administration do not render valid any intermediate acts of the administrator
tending to the diminution or damage of the intestates estate.
222.Probate only to appointed executor. — (1) Probate shall
be granted only to an executor l appointed by the will.
(2) The appointment may be expressed or by necessary
implication.
Illustrations
(i) A. wills that C be his executor if B will not. B is
appointed executor by implication. (ii) A gives a legacy to B and several legacies
the other persons, among the rest to his
daughter-in-law C, and adds "but should the
within-named C be not living I do constitute and appoint B my whole and sole
executrix", C is appointed executrix by implication.
(iii) A appoints several persons executors of his will and
codicils and his nephew residuary legatee, and in another codicil are these
words, —"I appoint my nephew my residuary legatee, to discharge all lawful
demands against my will and codicils signed of different dates." The
nephew is appointed an executor by implication.
223.Persons to whom probate cannot be granted. Probate
cannot be granted to any person who is a minor or is of unsound mind nor to any
association of individuals unless it is a company which satisfies the
conditions prescribed by rules to be made be the provincial Government in this
behalf.
224.Grant of probate to several executors simultaneously or
at different times.
When several executors are appointed, probate may be granted
to them all simultaneously or at different times.
Illustration
A is an executor of Bs will by express appointment and C an
executor of it by implication. Probate may be granted to A and C at the same
time or to A first and then to C, or to C first and then to A.
225.Separate probate of codicil discovered after grant of
probate. — (1) If a codicil is discovered after the grant of probate, a
separate probate of that codicil may be granted to the executor, if it in no
way repeals the appointment of executors made by the will.
(2) If different executors are appointed by the codicil, the
probate of the will shall be revoked, and a new probate granted of the will and
the codicil together.
226.Accrual of representation to surviving executor. When
probate has been granted to several executors, and one of them dies, the entire
representation of the testator accrues to the surviving executor or executors.
227.Effect of probate. Probate of a will when granted
establishes the will from the death of the testator, and renders valid all
intermediate acts of the executor as such.
228.Administration, with copy annexed, of authenticated copy
of will proved abroad. When a will has been proved and deposited in a Court of
competent jurisdiction situated beyond the limits of the Province, whether
within or beyond the limits of Pakistan. and a properly authenticated copy of
the will is produced, letters of administration may be granted with-a copy of
such copy annexed.
229.Grant of administration where executor has not
renounced. When a person appointed an executor has not renounced the
executorship, letters of administration shall not be granted to any other
person until a citation has been issued, calling upon the executor to accept or
renounce his executorship :
Provided that, when one or more of several executors have
proved a will, the Court may, on the death of the survivor of those who have
proved, grant letters of administration without citing those who have not
proved.
230.Form and effect of renunciation of executor ship. The
renunciation may be made orally in the presence of the Judge, or by a writing
signed by the person renouncing, and v- hen made shall preclude him from ever
thereafter applying for probate of the will appointing him executor.
231.Procedure where executor renounces or fails to accept
within time limited. If
an executor renounces, or fails to accept an executorship
within the time limited for the acceptance or refusal q thereof, the will may
be proved and letters of administration, i with a copy of the will annexed, may
be granted to the person who would be entitled to administration in case of
intestacy.
232.Grant of administration to universal or residuary
legatees. When —
(a) the deceased has made a will, but has not appointed an
executor, or
(b) the deceased has appointed an executor who is legally
incapable or refuses to act, or who has died before the testator or before he
has proved the will, or
(c) the executor dies after having proved the will, but
before he has administered all the estate of the deceased,
an universal or a residuary legatee may be admitted to prove
the will, and letters of administration with the will annexed may be granted to
him of the whole estate, or of so much thereof as may Re unadministered.
233.Right to administration of representative of deceased
residuary legatee. When a residuary legatee who has a beneficial interest
survives the testator, but dies before the estate has been fully Administered,
his representative has the same right to administration with the will annexed
as such residuary legatee.
234.Grant of administration where no executor, nor residuary
legatee nor representative of such legatee. When there is no executor and no
residuary legatee or representative of a residuary legatee, or he declines or
is incapable to act, or cannot be found, the person or persons who would be
entitled to the administration of the estate of the deceased if he had died
intestate, or any other legatee having a beneficial interest, or a creditor,
may be admitted to prove the will, and letters of administration may be granted
to him or them accordingly.
235.Citation before grant of administration to legatee other
than universal or residuary. Letters of administration with the will annexed
shall not be granted to any legatee other than an universal or residuary
legatee, until a citation has been issued and published in the manner
hereinafter mentioned, calling on the next-of-kin to accept or refuse letters
of administration.
236.To whom administration may not be granted. Letters of
administration cannot be granted to any person who is a minor or is of unsound
mind, nor to any association of individuals unless it is a company which
satisfies the conditions prescribed by rules to be made by the Provincial
Government in this behalf.
CHAPTER II
OF LIMITED GRANTS
GRANTS LIMITED IN DURATION
237.Probate of copy or draft of lost will. When a will has
been lost or mislaid since the testators death, or has been destroyed by wrong
or accident and not by any act of the testator, and a copy or the draft of the
will has been preserved, probate may be granted of such copy or draft, limited
until the original or a properly authenticated copy of it is produced.
238.Probate of contents of lost or destroyed will. When a
will has been lost or destroyed and no copy has been made nor the draft
preserved, probate may be granted of its contents if they can be established by
evidence.
239.Probate of copy where original exists. When the will is
in the possession of a person residing out of the Province in which application
for probate is made, who has refused or neglected to deliver it up, but a copy
has been transmitted to the executor, and it is necessary for the interests of
the estate that probate should be granted without waiting for the arrival of
the original, probate may be granted of the copy so transmitted, limited until
the will or an authenticated copy of it is produced.
240.Administration until will produced. Where no will of the
deceased is forthcoming, but there is reason to believe that there is a will in
existence, letters of administration may be granted, limited until the will or
an authenticated copy of it is produced.
GRANTS FOR THE USE AND BENEFIT OF OTHERS HAVING RIGHT
241.Administration, with will annexed, to attorney of absent
executor. When any executor is absent from the Province in which application is
made, and there is no executor within the Province willing to act, letters of
administration, with the will annexed, may be granted to the attorney or agent
of the absent executor ; for the use and benefit of his principal, limited
until he shall obtain probe or letters of administration granted to himself.
242.Administration, with will annexed, to attorney of absent
person who, if present, would be entitled to administer. When any person to
whom, if present, letters of administration, with the will annexed, might be
granted, is absent from the Province, letters of administration, with the will
annexed, may be granted to his attorney or agent, limited as mentioned in
section 241.
243.Administration to attorney of absent person entitled to
administer in case of intestacy. When a person entitled to administration in
case of intestacy i» absent from the Province, and no person equally entitled
is willing to act, letters of administration may be granted to the attorney or
agent of the absent person, limited as mentioned in section 241.
244.Administration during minority of sole executor or
residuary legatee. When a minor is sole executor or sole residuary legatee,
letters of administration, with the will annexed, may be granted to the legal
guardian of such minor or to such other person as the Court may think fit until
the minor has attained his majority at which period, and not before, probate of
the will shall be granted to him.
245.Administration during minority of several executors or
residuary legatees.
When there are two or more minor executors and no executor
who has attained majority, or two or more residuary legatees and no residuary
legatee who has attained majority, the grant shall be limited until one of them
shall have attained his majority.
246.Administration for use and benefit of lunatic or minor.
If a sole executor or a sole universal or residuary of legatee, or a person who
would be solely entitled to the estate of the intestate according to the rule
for the distribution of intestates estates applicable in the case of the
deceased, is a minor or lunatic, letters of administration, with or without the
will annexed, as the case may be, shall be granted to the person to whom the
care of his estate has been committed by competent authority, or, if there is
no such person, to such other person as the Court may think fit to appoint, for
the use and benefit of the minor or lunatic until he attains majority or
becomes of sound mind, as the case may be.
247.Administration pendente lite. Pending any suit touching
the validity of the will of a deceased person or for obtaining or revoking any
probate or any grant of letters of
administration, the Court may appoint an administrator of
the estate of such deceased person, who shall have all the rights and powers of
a general administrator, other than the right of distributing such estate, and
every such administrator shall be subject to the immediate control of the Court
and shall act under its direction.
GRANTS FOR SPECIAL PURPOSES
248.Probate limited to purpose specified in will. If an
executor is appointed for any limited purpose specified in the will, the
probate shall be limited to that purpose, and if he should appoint an attorney
or agent to take administration on his behalf, the letters of administration,
with the will annexed, shall be limited accordingly.
249.Administration, with will annexed, limited to particular
purpose. If an executor appointed generally gives an authority to an attorney
or agent to prove a will on his behalf, and the authority is limited to a
particular purpose, the letters of administration, with the will annexed, shall
be limited accordingly.
250.Administration limited to property in which person has
beneficial interest.
Where a person dies, leaving property of which he was the
sole or surviving trustee, or in which he had no beneficial interest on his own
account, and leaves no general representative, or one who is unable or
unwilling to act as such, letters of administration, limited to such property,
may be granted to the beneficiary, or to some other person on his behalf.
251.Administration limited to suit. When it is necessary
that the representative of a person deceased be made a party to a pending suit,
and the executor or person entitled to administration is unable or unwilling to
act, letters of administration may be granted to the nominee of a party in such
suit, limited for the purpose of representing the deceased in the said suit, or
in any other cause or suit which may be commenced in the same or in any other
Court between the parties, or any other parties, touching the matters at issue
in the said cause or suit, and until a final decree shall be made therein and
carried into complete execution.
252.Administration limited to purpose of becoming party to
suit to be brought against administrator. If, at the expiration of twelve
months from the date of any probate or letters of administration, the executor
or administrator to whom the same has been granted is absent from the Province
within which the Court which has granted the probate or letters of
administration exercises jurisdiction, the Court may grant, to any person whom
it may think fit, letters of administration limited to the purpose of becoming
and being made a party to a suit to be brought against the executor or
administrator, and carrying the decree which may be made therein into effect.
253.Administration limited to collection and preservation of
deceased’s property.
In any case in which it appears necessary for preserving the
property of a deceased person, the Court within whose jurisdiction any of the
property is situate may grant to any person, whom such Court may think fit,
letters of administration limited to the collection and preservation of the
property of the deceased and to the giving of discharges for debts due to his
estate, subject to the directions of the Court.
254.Appointment, as administrator, of person other than one
who, in ordinary circumstances, would be entitled to administration. — (1) When
a person has died intestate, or leaving a will of which there is no executor
willing and competent to act or
where the executor is, at the time of the death of such
person, resident out of the Province, and it appears to the Court to be
necessary or convenient to appoint some person to administer the estate or any
part thereof, other than the person who, in ordinary circumstances, would be
entitled to a grant of administration, the Court may, in its discretion, having
regard to consanguinity, amount of interest, the safety of the estate and
probability that it will be properly administered, appoint such person as it
thinks fit; to be administrator
(2) In every such case letters of administration may be
limited or not as the Court thinks fit. Grants with exception
255.Probate or administration, with will annexed, subject to
exception. Whenever the nature of the case requires that-an exception be made,
probate of a will, or letters of administration with the will annexed, shall be
granted subject to such exception.
256.Administration with exception. Whenever the nature of
the case requires that an exception be made, letters of administration shall be
granted subject to such exception.
GRANTS OF THE REST
257.Probate or administration of rest. Whenever a grant with
exception of probate, or of letters of administration with or without the will
annexed, has been made, the person entitled to probate or administration of the
remainder of the deceased’s estate may take a grant of probate or letters of
administration, as the case may be, of the rest of the deceased’s estate.
Grant of effects unadministered
258.Grant of effects unadministered. If an executor to whom
probate has been granted has died, leaving a part of the testators estate
unadministered, a new representative may be appointed for the purpose of
administering such part of the estate.
259.Rules as to grants of effects unadministered. In
granting letters of administration of an estate not fully administered, the
Court shall be guided by the same rules as apply to original grants, and shall
grant Setters of administration to those persons only to whom original grants
might have been made.
260.Administration when limited grant expired and still some
part of estate unadministered. When a limited grant has expired by efflux of
time, or the happening of the event or contingency on which it was limited, and
there it still some part of the deceased’s estate unadministered, letters of
administration shall be granted to those persons to whom original grants might
have been made.
CHAPTER III
ALTERATION AND REVOCATION OF GRANTS
261.What errors may be rectified by Court. Errors in names
and descriptions, or in setting forth the time and place of the deceased’s
death, or the purpose in a limited grant, may be rectified by the Court, and
the grant of probate or letters of administration may be altered and amended
accordingly.
262.Procedure where codicil discovered after grant of
administration with v»ill annexed. If, after the grant of letters of
administration with the will annexed, a codicil is discovered, it may be added
to the grant on due proof and identification, and the grant may be altered and
amended accordingly.
263.Revocation or annulment for just cause. The grant of
probate or letters of
administration may be revoked or annulled for just cause.
Explanation. — Just cause shall be deemed to exist where —
(a)the proceedings to obtain the grant were defective in
substance ; or
(b)the grant was obtained fraudulently by making a false
suggestion, or by concealing from the Court something material to the care ; or
(c)the grant was obtained by means of an untrue allegation ,
fat act essential in point of law to justify the grant, though such allegation
was made in ignorance or inadvertently ; or
(d)the grant has become useless and inoperative through
circumstances ; or
(e)the person to whom the grant was made has wilfully and
without reasonable cause omitted to exhibit an inventory or account in
accordance with the provisions of Chapter VII of this Part, or has exhibited
under that Chapter an inventory or account which is untrue in a material
respect.
Illustrations
(i)The Court by which the grant was made had no
jurisdiction.
(ii)The grant was made without citing parties who ought to
have been cited.
(iii)The will of which probate was obtained was forged or
revoked.
(iv) A obtained letters of administration to the estate of
B, as his widow, but it has since transpired that she was never married to him.
(v)A has taken administration to the (intestate) of B as if
he had died intestate, but a will has since been discovered.
(vi) Since probate was granted, a later will has been
discovered.
(vii) Since probate was granted, a codicil has been
discovered which revokes or adds to the
appointment of executors under the will.
(viii) The person to whom probate was, or letters of
administration were, granted has subsequently become of unsound mind.
CHAPTER IV
OF THE PRACTICE IN GRANTING AND REVOKING PROBATES AND
LETTERS OF
ADMINISTRATION.
264.Jurisdiction of District Judge in granting and revoking
probates, etc. — (1) The District Judge shall have jurisdiction in granting and
revoking probates and letters of administration in all cases within his
district.
(2) Except in cases to which section 57 applies, no Court
shall, where the deceased is a Hindu, Muslim, Buddhist, Sikh or Jaina or an
exempted person, receive applications for probate or letters of administration
until the Provincial Government has, by a notification in the official Gazette
, authorised it so to do.
265.Power to appoint Delegate of District Judge to deal with
non-contentious cases. — (1) The High Court may appoint such judicial officers
within any district as it thinks fit to act for the District Judge as Delegates
to grant probate and letters of administration in non-contentious cases, within
such local limits as it may prescribe : Provided that, in the case of High
Courts not established by Royal Charter, such appointment shall not be without
the previous sanction of the Provincial Government.
(2) Persons so appointed shall be called " District
Delegates".
266.District Judges powers as to grant of probate and
administration. The District Judge shall have the like powers and authority in
relation to the granting of probate and letters of administration, and all
matters connected therewith, as are by law vested in him in relation to any
civil suit or proceeding pending in his Court.
267.District Judge may order person to produce testamentary
papers. — (1) The District Judge may order any person to produce and bring into
Court any paper or writing, being or purporting to be testamentary, which may
be shown to be in the possession or
under the control of such person.
(2)If it is not shown that any such paper or writing is in
the possession or under the control of such person, but there is reason to
believe that he has the knowledge of any such paper or writing, the Court may
direct such person to attend for the purpose of being examined respecting the
same.
(3)Such person shall be bound to answer truly such questions
as may be put to him by the Court, and, if so ordered, to produce and bring in
such paper or writing, and shall be subject to the like punishment under the
Pakistan Penal Code, in case of default in not attending or in not answering
such questions or not bringing in such paper or writing, as he would have been
subject to in case he had been a party to a suit and had made such default.
(4)The costs of the proceeding shall be in the discretion of
the Judge.
268.Proceedings of District Judges Court in relation to
probate and administration. The proceedings of the Court of the District Judge
in relation to the granting of probate and letters of administration shall,
save as hereinafter otherwise provided, be regulated, so far as the
circumstances of the case permit, by the Code of Civil Procedure. 1908.
269.When and how District Judge to interfere for protection
of property. — (1) Until probate is granted of the will of a deceased person,
or an administrator of his estate is constituted, the District Judge, within
whose jurisdiction any part of the property
of the deceased person is situate, is authorised and
required to interfere for the protection of such property at the instance of
any person cleaning to be interested therein, and in all other cases where the
judge considers that the property incurs any risk of loss or damage; and for
that purpose, if he thinks tit, to appoint an officer to take and keep
possession of the property.
(2) This section shall not apply when the deceased is a
Hindu, Muslim, Buddhist, Sikh or Jaina or an exempted person, nor shall it
apply to any part of the property of a Pakistan Christian who has died
intestate.
270.When probate or administration may be granted by
District Judge. Probate of the will or letters of administration to the estate
of a deceased person may be granted by a District Judge under the seal of his
Court, if it appears by a petition, verified as hereinafter provided, of the
person applying for the same that the testator or intestate, as the case may
be, at the time of ls decease had a fixed place of abode, or any property,
moveable or immoveable, within the jurisdiction of the Judge.
271.Disposal of application made to Judge of district in
which deceased had no fixed abode. When the application is made to the Judge of
a district in which the deceased had no fixed abode at the time of his death,
it shall be in the discretion of the Judge to refuse the application, if in his
judgment it could be disposed of more justly. I or conveniently in another
district, or, where the application is for letters of administration, to grant
them absolutely, or limited to the property within his own jurisdiction.
272.Probate and letters of administration may be granted by
Delegate. Probate and letters of administration: may, upon application for that
purpose to any District Delegate, be granted by him in any case in which there
is no contention, if it appears by petition, verified as hereinafter provided,
that the testator or intestate, as the case may be, at the lime of his death
had a fixed place of abode within the jurisdiction of such Delegate.
273.Conclusiveness of probate or letters of administration.
Probate or letters of
administration shall have effect over all the property and
estate, moveable or immoveable, of the deceased, throughout the Province in
which the same is or are granted, and shall be conclusive as to the
representative title against all debtors of the deceased, and all persons
holding property which belongs to him, and shall afford full indemnity to all
debtors, paying their debts and all persons delivering up such property to the
person to whom such probate or letters of administration have been granted :
Provided that probates and letters of administration granted
—
(a)by a High Court, or
(b)by a District Judge, where the deceased at the time of
his death had a fixed place of abode situate within the jurisdiction of such
Judge, and such Judge certifies that the value of the property and estate
affected beyond the limits of the Province does not exceed ten thousand rupees,
shall, unless otherwise directed by the grant, have like effect broughtout
Pakistan. The said proviso shall also apply in Pakistan after the separation of
Pakistan from India to probates and letters of administration granted before
the date of the separation, or on or after that date in proceedings pending at
that date in any of the territories which on that date were comprised in India.
274.Transmission to High Courts of certificate of grants
under proviso to section
273.— (1) Where probate or letters of administration has or
have been granted by a High Court or District Judge with the effect referred to
in the proviso to section 273, the High Court or District Judge shall send a
certificate thereof to the following Courts, namely : —
(a) when the grant has been made by a High Court, to each of
the other High Courts ;
(b) when the grant has been made by a District Judge, to the
High Court to which such District Judge is subordinate and to each of the other
High Courts.
(2) Every certificate referred to in sub-section (1) shall
be made as nearly as circumstances admit in the form set forth in Schedule IV,
and such certificate shall be filed by the High Court receiving the same.
(3) Where any portion of the assets has been stated by the
petitioner, as hereinafter provided in sections 276 and 278, to be situate
within the jurisdiction of a District Judge in another Province, the Court
required to send the certificate referred to in sub-section (1) shall send a
copy thereof to such District Judge, and such copy shall be filed by the
District Judge receiving the same.
275.Conclusiveness of application for probate or
administration if properly made and verified. The application for probate or
letters of administration, if made and verified in the manner hereinafter
provided, shall be conclusive for the purpose of authorising the grant of
probate or administration ; and no such grant shall be impeached by reason only
that the testator or intestate had no fixed place of abode or no property
within the district at the time of his death, unless by a proceeding to revoke
the grant if obtained by a fraud upon the Court.
276.Petition for probate. — (1) Application for probate or
for letters of administration, with the will annexed, shall be made by a
petition distinctly written in English or in the language in ordinary use in
proceedings before the Court in which the application is made, with the will
or, in the cases mentioned in sections 237, 238, and 239, a copy, draft, or
statement of the contents thereof, annexed, and stating —
(a) the time of the testators death,
(b) that the writing annexed is his last will and testament,
(c) that it was duly executed,
(d) the amount of assets which are likely to come to the
petitioners hands, and
(e) when the application is for probate, that the petitioner
is the executor named in the will.
(2) In addition to these particulars, the petition shall
further state, —
(a)when the application is to the District Judge, that the
deceased at the time of his death had a fixed place of abode, or had some
property, situate within the jurisdiction of the Judge : and
(b)when the application is to a District Delegate, that the
deceased at the time of his death had a fixed place of abode within the
jurisdiction of such Delegate.
(3) Where the application is to the District judge and any
portion of the assets likely to come to the petitioners hands is situate in
another Province the petition shall further state the amount of such assets in
each Province and the District Judges within whose jurisdiction such assets are
situate.
277.In what cases translation of will to be annexed to
petition. Verification of translation by person other than Court translator. In
cases wherein the will, copy or draft, is written in any language other than
English or than that in ordinary use in proceedings before the Court, there shall
be a translation thereof annexed to the petition by a translator of the Court,
if the language be one for which a translator is appointed ; or, if the will,
copy or draft, is in any other language, then by any person competent to
translate the same, in which case such translation shall be verified by that
person in the following manner, namely : —
I. (A.B.) do declare that I read and perfectly understand
the language and character of the original, and that the above is a true and
accurate translation thereof."
278.Petition for letters of administration. — (1)
Application for letters of administration shall be made by petition distinctly
written as aforesaid and stating —
(a) the time and place of the deceased’s death ;
(b) the family or other relatives of the deceased, and their
respective residences ;
(c) the right in which the petitioner claims ;
(d) the amount of assets which are likely to come to the
petitioners hands ;
(c) when the application is to the District Judge, that the
deceased at the time of his death had a fixed place of abode, or had some
property, situate within the jurisdiction of the Judge ; and
(f) when the application is to a District Delegate, that the
deceased at the time of his death had a fixed place of abode within the
jurisdiction of such Delegate.
(2) Where the application is to the District Judge and any
portion of the assets likely to come to the petitioners hands is situate in
another Province, the petition shall further state the amount of such assets in
each Province and the District Judges within whose jurisdiction such assets are
situate.
279.Addition to statement in petition, etc., for probate or
letters of administration in certain cases. — (1) Every person applying to any
of the Courts mentioned in the proviso to section 273 for probate of a will or
letters of administration of an estate intended to have effect throughout
Pakistan, shall state in his petition, in addition to the matters respectively
required by section 276 and section 278, that to the best of his belief no application
has been made to any other Court for a probate of the same will or for letters
of administration of the same estate, intended to have such effect as last
aforesaid,
or, where any such application has been made, the Court to
which it was made, the person or persons by whom it was made and the
proceedings (if any had then; on.
(2) The Court to which any such application is made under
the proviso to section 273 may, if it thinks fit, reject the same.
280.Petition for probate, etc., to be signed and verified.
The petition for probate or letters of administration shall in all cases be
subscribed by the petitioner and his pleader, if
any, and shall be verified by the petitioner in the
following manner, namely : —
"1 (A.B.), the petitioner in the above petition,
declare that what is stated therein is true to the best of my information and
belief".
281.Verification of petition for probate by one witness to
will. Where the application is for probate, the petition shall also be verified
by at least one of the witnesses to the will (when procurable) in the manner or
to the effect following, namely : —
" 1 (C.D), one of the witnesses to the last will and
testament of the testator mentioned in the above petition, declare that I was
present and saw the said testator affix his signature (or mark) thereto (or
that the said testator acknowledged the writing annexed to the above petition
to be his last will and testament in my presence). "
282.Punishment for false averment in petition or
declaration. If any petition or declaration which is hereby required to be
verified contains any averment which the person making the verification knows
or believes to be false, such person shall be deemed to have committed an
offence under section 193 of the Pakistan Penal Code.
283.Powers of District Judge. In all cases the District
Judge or District Delegate may, if he thinks proper, —
(a) examine the petitioner in person, upon oath ;
(b) require further evidence of the due execution of the
will or the right of the petitioner to the letters of administration, as the
case may be ;
(c) issue citations calling upon all persons claiming to
have any interest in the estate of the deceased to come and see the proceedings
before the grant of probate or letters of administration.
(2) The citation shall be fixed up in some conspicuous part
of the court-house, and also in the office of the Collector of the district and
otherwise published or made known in such manner as the Judge or District
Delegate issuing the same may direct.
(3) Where any portion of the assets h;-s been stated by the
petitioner to be situate within the jurisdiction of a District Judge in another
Province, the District Judge issuing the same shall cause a copy of the
citation to be sent to such other District Judge, who shall publish the same in
the same manner as if it were a citation issued by himself, and shall certify
such publication to the District Judge who issued the citation.
284.Caveats against grant of probate or administration. Form
of caveat. — (1) Caveats against the grant of probate or administration may be
lodged with the District Judge or a District Delegate.
(2) Immediately on any caveat being lodged with any District
Delegate, he shall send copy thereof to the District Judge.
(3) Immediately on a caveat being entered with the District
Judge, a copy thereof shall be given to the District Delegate, if any, within
whose jurisdiction it is alleged the deceased had a fixed place of abode at the
time of his death, and to any other Judge or District Delegate to whom it may
appear to the District Judge expedient to transmit the same.
(4) The caveat shall be made as nearly as circumstances
admit in the form set forth in Schedule V.
285.After entry of caveat, no proceeding taken on petition
until after notice to caveator. No proceeding shall be taken on a petition for
probate or letters of administration after a caveat against the grant , thereof
has been entered with the Judge or District Delegate to whom the application
has been made or notice has been given of its entry with some other Delegate,
until after such notice to the person by whom the same has been
entered as the Court may think reasonable.
286.District Delegate when not to grant probate or
administration. A District Delegate shall not grant probate or letters of
administration in any case in which there is contention as to the grant, or in
which it otherwise appears to him that probate or letters of administration
ought not to be granted in his Court.
Explanation. —" Contention " means the appearance
of any one in person, or by his recognized agent, or by a pleader duly
appointed to act on his behalf, to oppose the proceeding.
287.Power to transmit statement to District Judge in
doubtful cases where no contention. In every case in which there is no
contention; but it appears to the District Delegate doubtful whether the
probate or letters of administration should or should not be granted, or when
any question arises in relation to the. grant, or application for the grant, of
any probate or letters of administration, the District Delegate may, if he
thinks proper, transmit a statement of the matter in question to the District
Judge, who may direct the District Delegate to proceed m the matter of the
application, according to such instructions as to the Judge may seem necessary,
or may forbid any farther proceeding by the District Delegate in relation to
the matter of such application, leaving the party applying for the grant in
question to make application to the Judge.
288.Procedure where there is contention, or District
Delegate thinks probate or letters of administration should be refused in his
Court. In every case in which there is contention, or the District Delegate is
of opinion that the probate or letters of administration should be refused in
his Court, the petition, with any documents which may have been filed
therewith, shall be returned to the person by whom the application was made, in
order that the same may be presented to the District Judge, unless the District
Delegate thinks it necessary, for the purposes of justice, to impound the same,
which he is hereby authorised to do ; and, in that case, the same shall be sent
by him to the District Judge.
289.Grant of pro ate to be under seal of Court. When it
appears to the District Judge or District Delegate that probate of a will
should be granted, he shall grant the same under the seal of his Court in the
form set forth in Schedule VI.
290.Grant of letters of administration to be under seal of
Court. When it appears to the District Judge or District Delegate that letters
of administration to the estate of a person deceased, with or without a copy of
the will annexed, should be granted, he shall grant the same under the seal of
his Court in the form set forth in Schedule VII.
291.Administration-bond. (1) Every person to whom any grant
of letters of administration, other than a grant under section 241, is
committed, shall give a bond to the District Judge with one or more surety or
sureties, engaging for the due collection, getting in, and administering the estate
of the deceased, which bond shall be in such form as the
Judge may, by general or special order, direct.
(2) When the deceased was a Hindu, l Muslim, Buddhist, Sikh
or Jaina or an exempted person —
(a) the exception made by sub-section (1) in respect of a
grant under section 241 shall not operate ;
(b) the District Judge may demand a like bond from any
person to whom probate is granted.
292.Assignment of administration-bond. The Court may, on
application made by petition and on being satisfied that the engagement of any
such bond has not been kept, and upon such terms as to security, or providing
that the money received be paid into Court, or otherwise, as the Court may
think fit, assign the same to some person, his executors or administrators, who
shall thereupon be entitled to sue on the said bond in his or their own name or
names as if the same had been originally given to him or them instead of to the
Judge of the Court, and shall be entitled to recover thereon, as trustees for
all person interested, the full amount recoverable in respect of any breach
thereof.
293.Time for grant of probate and administration. No probate
of a will shall be granted until after the expiration of seven clear days, and
no letters of administration shall be granted until after the expiration of
fourteen clear days from the day of the testator or intestates death.
294.Filing of original wills of which probate or
administration with will annexed granted. — (1) Every District Judge, or
District Delegate, shall file and preserve all original wills, of which probate
or letters of administration with the will annexed may be granted by him, among
the records of his Court, until some public registry for 1 wills is
established.
(2) The Provincial Government shall make regulations for the
preservation and inspection of the wills so filed.
295.Procedure in contentious cases. In any case before the
District Judge in which there is contention, the proceedings shall take, as
nearly as may be, the form of a regular suit, according to the provisions of
the Code of Civil Procedure, 1908. in which the petitioner for probate or
letters of administration, as the case may be, shall be the plaintiff, and the
person who has appeared to oppose the grant shall be the defendant.
296.Surrender of revoked probate or letters of
administration. — (1) When a grant of probate or letters of administration is
revoked or annulled under this Act, the person to whom the grant was made shall
forthwith deliver up the probate or letters to the Court which made the grant.
(2) If such person wilfully and without reasonable cause
omits so to deliver up the probate or letters, he shall be punishable with fine
which may extend to one thousand rupees, or with imprisonment for a term which
may extend to three months, or with both.,
297.Payment to executor or administrator before probate or
administration revoked. When a grant of probate or letters of administration is
revoked, all payments bona fide made to any executor or administrator under
such grant before the revocation thereof shall, notwithstanding such
revocation, be a legal discharge to the person making the same ; and the
executor or administrator who has acted under any such revoked grant may retain
and reimburse himself in respect of any payments made by him which the person
to whom probate or letters of administration may afterwards be granted might
have lawfully made.
298.Power to refuse letters of administration.
Notwithstanding anything hereinbefore contained it shall, where the deceased
was a Muslim, Buddhist or exempted person, or a Hindu, Sikh or Jaina to whom
section 57 does not apply, be in the discretion of the Court to make an order
refusing, for reasons to be recorded by it in writing, to grant any application
for letters of administration made under this Act.
299.Appeals from orders of D Strict Judge. Every order made
by a District Judge by virtue of the powers hereby conferred upon him shall be
subject to appeal to the High Court in accordance with the provisions of the
Code of Civil Procedure, 1908, applicable to appeals.
300.Concurrent jurisdiction of High Court. — (1) The High
Court shall have concurrent jurisdiction with the District Judge in the
exercise of all the powers hereby conferred upon the District Judge.
(2) Except in cases to which section 57 applies, no High
Court, in exercise of the concurrent jurisdiction hereby conferred over any
local area shall, where the deceased is a Hindu, Muslim, Buddhist, Sikh or
Jaina or an exempted person, receive applications for probate or letters of
administration until the Provincial Government has, by a notification in the
official Gazette, authorised it so to do.
301.Removal of executor or administrator and provision for
successor. The High Court may on application made to it suspend remove or
discharge any private executor or administrator and provide for the succession
of another person to the office of any such executor or administrator who may
cease to hold office, and the vesting in such successor of any property
belonging to the estate
302.Directions to executor or administrator. Where probate
or letters of administration in respect of any estate has or have been granted
under this Act, the High Court may on application made to it, give to the
executor or administrator any general or special directions in regard to the
estate or in regard to the administration thereof.
CHAPTER V
OF EXECUTORS OF THEIR OWN WRONG
303.Executor of his own wrong. A person who intermeddles
with the estate of the deceased, or does any other act which belongs to the
office of executor while there is no rightful executor or administrator in
existence thereby makes himself an executor of his own wrong.
Exceptions. — (I) Intermeddling with the goods of the
deceased for the purpose of preserving them or providing for his funeral or for
the immediate necessities of his family or property, does not make an executor
of his own wrong.
(2) Dealing in the ordinary course of business with goods of
the deceased received from another does not make an executor of his own wrong.
Illustrations
(i) A uses or gives away or sells some of the goods of the
deceased, or takes them to satisfy his own debt or legacy or receives payment
of the debts of the deceased. He is an executor of his own wrong.
(ii) A, having been appointed agent by the deceased in his
lifetime to collect his debts and sell his goods, continues to do so after he
has become aware of his death. He is an executor of his own wrong in respect of
acts done after he has become aware of the death of the deceased.
(iii) A sues as executor of the deceased, not being such. He
is an executor of his own wrong.
304.Liability of executor of his own wrong. When a person
has so acted as to become an executor of his own wrong, he is answerable to the
rightful executor or administrator, or to any creditor or legatee of the
deceased, to the extent of the asset which may have come to his hands after
deducting payments made to the rightful executor or administrator, and payments
made in due course of administration.
CHAPTER VI
OR THE POWERS OF AN EXECUTOR OR ADMINISTRATOR
305.In respect of causes of action surviving deceased and
debts due at death. An executor or administrator has the same power to sue in
respect of all causes of action that survive the deceased, and may exercise the
same power for the recovery of debts as the; deceased had when living.
306.Demands and rights of action of or against deceased
survive to and against executor or administrator. All demands whatsoever and
all rights to prosecute or defend any action or special proceeding existing in
favour of or against a person at the time of his decease, survive to and
against his executors or administrators ; except causes of action for
defamation, assault, as deemed in the Pakistan Penal Code, or other personal
injuries not causing the death of the party ; and except also cases where,
after the death of the party, the relief sought could not be enjoyed or
granting it would b« nugatory.
Illustrations
(i) A collision takes place on a railway in consequence of
some neglect or default of an official, and a passenger is severely hurt, but
not so as to cause death. He afterwards dies without having brought any action.
The cause of action does not survive.
(ii) A sues for divorce. A dies. The cause of action does
not survive to his representative.
307.Power of executor or administrator to dispose of
property. — (1) Subject to the provisions of sub-section (2), an executor or
administrator has power to dispose of the property of the deceased, vested in
him under section 211, either wholly or in part, in such manner as he may think
fit.
Illustrations
(i) The deceased has made a specific bequest of part of hit
property. The executor, not having assented to the bequest, sells the subject
of it. The sale is valid.
(ii) The executor in the exercise of his discretion
mortgages a part of the immoveable estate of the deceased. The mortgage is
valid.
(2) If the deceased was a Hindu, Muslim, Buddhist, Sikh or
Jaina or an exempted person, the general power conferred by sub-section (1)
shall be subject to the following restrictions and conditions, namely : —
(i) The power of an executor to dispose of immoveable
property so vested in him is subject to any restriction which may be imposed in
this behalf by the will appointing him, unless probate has been granted to him
and the Court which granted the probate permits him by an order in writing,
notwithstanding the restriction, to dispose of any immoveable property
specified in the order in a manner permitted by the order.
(ii) An administrator may not, without the previous permission
of the Court by which the letters of administration were granted, —
(a) mortgage charge or transfer by sale, gift, exchange or
otherwise any immoveable property for the time being vested in him under
section 211, or
(b) lease any such property for a term exceeding five years.
(iii) A disposal of property by an executor or administrator
in contravention of clause (i) or
clause (ii), as the case may be, is voidable at the instance
of any other person interested in the property.
(3)Before any probate or letters of administration is or are
granted in such a case, there shall be endorsed thereon or annexed thereto a
copy of sub-section (1) and clauses (i) and (Hi) of sub-section (2) or of
sub-section (1) and clauses (ii) and (iii) of sub-section (2), as the case may
be.
(4)A probate or letters of administration shall not be
rendered invalid by reason of the endorsement or annexure required by
sub-section (3) not having been made thereon or attached thereto, nor shall the
absence of such an endorsement or annexure authorise an executor or
administrator to act otherwise than in accordance with the provisions of this
section.
308.General powers of administration. An executor or
administrator may, in addition to, and not in derogation of, any other powers
of expenditure law fully exercisable by him, incur expenditure —
(a) on such acts as may be necessary for the proper care or
management of any property belonging to any estate administered by him, and
(b) with the sanction of the High Court, on such religious,
charitable and other objects, and on such improvements, as may be reasonable
and proper in the case of such property.
309.Commission or agency charges. An executor or
administrator shall not be entitled to receive or retain any commission or
agency charges at a higher rate than that for the time being fixed in respect
of the Administrator General by or under the Administrator Generals Act. 1913.
310.Purchase by executor or administrator of deceased
property. If any executor or administrator purchases, either directly or
indirectly, any part of the property of the deceased, the sale is voidable at
the instance of any other person interested in the property sold.
311.Powers of several executors or administrators
exercisable by one. When there are several executors or administrators, the
powers of all may, in the absence of any direction to the contrary, be
exercised by any one of them who has proved the will or taken out
administration.
Illustrations
(i) One of several executors has power to release a debt due
to the deceased. (ii) One has power to surrender a lease.
(iii) One has power to sell the property of the deceased
whether moveable or immovable. One has power to assent to a legacy. (v) One has
power to endorse a promissory note payable to the deceased.
(vi) The will appoints A, B, C and D to be executors, and
directs that two of them shall be a quorum. No act can be done by a single
executor.
312.Survival of powers on death of one of several executors
or administrators.
Upon the death of one or more of several executors or
administrators, in the absence of any direction to the contrary in the will or
grant of letters of administration, all the powers of the office become vested
in the survivors or survivor.
313.Powers of administrator of effects unadministered. The
administrator of effects unadministered has, with respect to such effects, the
same power as the original executor or administrator.
314.Powers of administrator during minority. An
administrator during minority has all the powers of an ordinary administrator.
315.Powers of married executrix or administratrix. When a
grant of probate or letters of administration has been made to a married woman,
she has a!; the powers of an ordinary executor or administrator.
CHAPTER VII
OF THE DUTIES OF AN EXECUTOR OR ADMINISTRATOR
316.A’s to deceased’s funeral. It is the duty of an executor
to provide funds for the performance of the necessary funeral ceremonies of the
deceased in manner suitable to his condition, if he has left property
sufficient for the purpose.
317.Inversely and account. — (1) An executor or
administrator shall, within six months from the grant of probate or letters of
administration, or within such further time as the Court which granted the
probate or letters may appoint, exhibit in that Court an inventory containing a
full and true estimate of all the property in possession, and all the credits,
and also all the debts owing by any person to which the executor or
administrator is entitled in that character ; and shall in like manner, within
one year from the : grant or within such further time as the said Court may
appoint exhibit an account of the estate, showing the assets which have come to
his hands and the manner in which they have been applied or disposed of.
(2) The High Court may prescribe the form in which an
inventory or account under this section is to be exhibited.
(3) If an executor administration being required by the
Court to exhibit an inventory or account under this section, intentionally
omits to con. ply with the requisition, he shall be deemed to have committed,
an offence under section 176 of the Pakistan Penal Code.
(4) The exhibition of an intentionally false inventory or
account under this section shall be deemed to be an offence under section 193
of that Code.
318.Inventory to include property in any part of Pakistan,
in certain cases. In all cases where a grant has been made of probate or
letters of administration intended to have effect throughout Pakistan, the
executor or administrator shall include in the inventory of the effects of the
deceased all his moveable and immoveable property situate in Pakistan, and the
value of such property situate in each Province shall be separately stated in
such inventory, and the probate or letters of administration shall be chargeable
with a fee corresponding to the entire amount or value of the property affected
thereby wheresoever situate within Pakistan.
319.As to property of, and debts owing to, deceased. The
executor or administrator shall collect, with reasonable diligence, the
property of the deceased and the debts that were due to him at the tune of his
death.
320.Expenses to be paid before all debts. Funeral expenses
to a reasonable amount, according to the degree and quality of the deceased,
and death-bed charges, including fees for medical attendance, and board and
lodging for one month previous to his death, shall be paid before all debts.
321.Expenses to be paid next after such expenses. The
expenses of obtaining probate or letters of administration, including the costs
incurred for or in respect of any judicial proceedings that may be necessary
for administering the estate, shall be paid next after the
funeral expenses and death-bed charges.
322.Wage; for certain services to be next paid, and the n
other debts. Wages due for services rendered to the deceased within three
months next preceding his death by any labourer, artizan or domestic servant
shall next be paid, and then the other debts of the deceased according to their
respective priorities (if any).
323.Save as aforesaid, all debts to be paid equally and
rate-ably. Save as aforesaid, no creditor shall have a right of priority over
another ; but the executor or administrator shall pay all such debts as he
knows of, including his own, equally and ratably as far as the assets of the
deceased will extend.
324.Application of moveable property to payment of debts .
where domicile not in Pakistan. — (1) If the domicile of the deceased was not
in t Pakistan, the application of his moveable property to the payment of his
debts is to be regulated by the law of Pakistan,
(2) No creditor who has received payment of a part of his
debt by virtue of sub-section (1) shall be entitled to share in the proceeds of
the immoveable estate of the deceased unless he brings such payment into account
for the benefit of the other creditors.
(3) This section shall not apply where the deceased was a
Hindu, Muslim Buddhist, Sikh or Jaina or an exempted person.
Illustration
A dies, having his domicile in a country where instruments
under sea have priority over instruments not under seal leaving moveable
property to the value of 5,000 rupees, and immoveable property to the value of
10,000 rupees, debts on instruments under seal to the amount of 10,000 rupees,
and debts on instruments not under seal to the same amount. The creditors
holding instruments under sea; receive hail of their debts out of the proceeds
of the moveable estate. The proceeds of the immoveable estate are to be applied
in payment o; the debts en instruments not under seal until one-half such debts
has been discharged. This will leave 5,000 rupees which are to be distributed
ratably amongst all the creditors without distinction, in proportion to the
amount which may remain due to them.
325.Debts to be paid before legacies. Debts of every
description must be paid before any legacy.
326.Executor or administrator not bound to pay legacies
without indemnity. If the estate of the deceased is subject to any contingent
liabilities, an executor or administrator is not bound to pay. any legacy without
a sufficient indemnity to meet the liabilities whenever they may become due.
327.Abatement of general legacies. If the assets, after
payment of debts, necessary expenses and specific legacies, are not sufficient
to pay all the general legacies in full, the latter shall abate or be
diminished in equal proportions, and, in the absence of any direction to the
contrary in the will, the executor has no right to pay one legatee in
preference to another, or to retain any money on account of a legacy to himself
or to any person for whom he is a trustee.
328.Non-abatement of specific legacy when assets sufficient
to pay debts. Where there is a specific legacy, and the assets are sufficient
for the payment of debts and necessary expenses, the thing specified must be
delivered to the legatee without any abatement.
329.Right under demonstrative legacy when assets sufficient
to pay debts and necessary expenses. Where there is a demonstrative legacy, and
the assets are sufficient for the payment of debts and necessary expenses, the
legatee has a preferential claim for payment of his legacy out of the fund from
which the legacy is directed to be paid until such fund is exhausted and if,
after the fund is exhausted, part of the legacy still remains unpaid, he is
entitled to rank for the remainder against the general assets as for a legacy
of the amount of such unpaid remainder.
330.Rateable abatement of specific legacies. If the assets
are not sufficient to answer the debts and the specific legacies, an abatement
shall be made from the latter ratably in proportion to their respective
amounts.
Illustration
A has bequeathed to B a diamond ring valued at 500 rupees,
and to C & horse, valued at 1,000 rupees. It is found necessary to sell all
the effects of the testator ; and his assets, after payment of debts, are only
1,000 rupees. Of this sum rupees 333-5-4 are to be paid to B, and rupees
666-10-8 to C.
331.Legacies treated as general for purpose of abatement.
For the purpose of abatement, a legacy for life, a sum appropriated by the will
to produce an annuity, and the value of an annuity when no sum has been
appropriated to produce it, shall be treated as general legacies.
CHAPTER VIII
OP ASSENT TO A LEGACY BY EXECUTOR OR ADMINISTRATOR
332.Assent, necessary to complete legatees title. The assent
of the executor or administrator is necessary to complete a legatees title to
his legacy.
Illustrations
(i) his will bequeaths to B his Government paper which is in
deposit with the National Bank of Pakistan. The Bank has no authority to
deliver the securities, nor B a right to take possession of them, without the
assent of the executor.
(ii) A by his will has bequeathed to C his house in Quetta
in the tenancy of B. C is not entitled to receive the rents without the assent
of the executor or administrator.
333.Effect of executors assent to specific legacy. — (1) The
assent of the executor or administrator to a specific bequest shall be
sufficient to divest his interest as executor or administrator therein, and to
transfer the subject of the bequest of the legatee, unless the nature or the
circumstances of the property require that it shall be transferred in a
particular way.
(2) This assent may be verbal, and it ma;. be either express
or implied from the conduct of the executor or administrator.
Illustrations
(i) A horse is bequeathed. The executor requests the legatee
to dispose of it, or a third party proposes to purchase the horse from the
executor, and he directs him to apply to the legatee. Assent to the legacy is
implied.
(m) The interest of a fund is directed by the will to be
applied for the maintenance of the legatee during his minority. The executor
commences so to apply it. This is an assent to the whole of the bequest.
(in) A bequest is made of a fund to A and after him to B. The
executor pays the interest of the fund to A. This is an implied assent to the
bequest to B.
(iv)Executors die after paying all the debts of the
testator, but before satisfaction of specific legacies. Assent to the legacies
may be presumed.
(v)A person to whom a specific article has been bequeathed
takes possession of it and
retains it without any objection on the part of the
executor. His assent may be presumed.
334.Conditional assent. The assent of an executor or
administrator to a legacy may be conditional, and if the condition is one which
he has a right to enforce, and it is not performed, there is no assent.
Illustrations
(i) A bequeaths to B his lands of Sultanpur, which at the
date of the will, and at the death of A, were subject to a mortgage for 10,000
rupees. The executor assents to the bequest, on condition that B shall within a
limited time pay the amount due on the mortgage at the testators death. The
amount is not paid. There is no assent.
(ii) The executor assents to a bequest on condition that the
legatee shall pay him a sum of money. The payment is not made. The assent is
nevertheless valid.
335.Assent of executor to his own legacy. — (1) When the
executor or administrator is a legatee, his assent to his own legacy is
necessary to complete his title to it, in the same way as it is required when
the bequest is to another person, and his assent may, in like manner, be
expressed or implied.
(2) Assent shall be implied if in his manner of
administering thc property lie does any act. which is referable to his
character of legatee and is not referable to his character of executor or
administrator.
Illustration
An executor take, the rent of a house or the interest of
Government securities bequeathed to him, and applies it to his own use This is
assent.
336.Effect of executors assent. The assent of the executor
or administrator to a legacy gives effect to it from the death of the testator.
Illustrations
(i) A legatee sells his legacy before it is assented to by
the executor. The executors subsequent assent operates for the benefit of the
purchaser and completes his title to the legacy-
(ii) A bequeaths 1,000 rupees to B with interest from his
death. The executor does not assent to his legacy until the expiration of a
year from As death. B is entitled to interest from the death of A.
337.Executor when to deliver legacies. An executor or
administrator is not bound to pay or deliver any legacy until the expiration of
one year from the testators death.
Illustration
A by his will directs his legacies to be paid within six
months after ; his death. The executor is not bound to pay them before the
expiration of a year.
CHAPTER IX
OF THE PAYMENT AND APPORTIONMENT OF ANNUITIES
338.Commencement of annuity when no time fixed by will.
Where an annuity is given by a will and no time is fixed for its commencement,
it shall commence from the testators death, and the first payment shall be made
at the expiration of a year next after that event.
339.When annuity, to be paid quarterly or monthly, first
falls due. Where there is a direction that the annuity shall be paid quarterly
or monthly, the first payment shall be due at the end of the first quarter or
first month, as the case may be, after the testators death; and shall, if thy
executor or administrator thinks fit, be paid when due, but the executor or
administrator shall not be bound to pay it till the end of the year.
340. Dates of successive payments when first payment
directed to be made within a given time or on day certain : death of annuitant
before date of payment. — (1) Where there is a direction that the first payment
of an annuity shall be made within one month or any other division of time from
the death of the testator, or on a day certain, the successive payments are to
be made on the anniversary of the earliest day on which the will authorises the
first payment to be made.
(2) If the annuitant dies in the interval between the times
of payment, an apportioned share of the annuity shall be paid to his
representative,
CHAPTER X
OF THE INVESTMENT OF FUNDS TO PROVIDE FOR LEGACIES
341.Investment of sum bequeathed, where legacy, not specific
given for life.
Where a legacy, not being a specific legacy, is given for
life, the sum bequeathed shall at the end of the year be invested in such
securities as the High Court may by any general rule authorise or direct, and
the proceeds thereof shall be paid to the legatee as the same Investment of sum
bequeathed, where legacy, not specific given for life shall accrue due.
342.Investment of general legacy, to be paid at future time
: disposal of intermediate interest. — (1) Where a general legacy is given to
be paid at a future time, the executor or administrator shall invest a sum
sufficient to meet it in securities of the kind mentioned in section 341.
(2) The intermediate interest shall from part of the residue
of the testators estate.
343.Procedure when no fund charged with, or appropriated to,
annuity. Where an annuity is given and no fund is charged with its payment or
appropriated by the will to answer it, a Government annuity of the specified
amount shall be purchased, or, if no such annuity can be obtained, then a sum
sufficient to produce the annuity shall be invested for that purpose in
securities of the kind mentioned in section 341.
344.Transfer to residuary legatee of contingent bequest.
Where a bequest is contingent, the executor or administrator is not bound to
invest the amount of the legacy, but may transfer the whole residue of the
estate to the residuary legatee , if any, en his giving sufficient security for
the payment of the legacy if it shall become due.
345.Investment of residue bequeathed for life, without
direction to invest in particular securities. — (1) Where the testator has
bequeathed the residue of his estate to a person for life without, any direction
to invest if-in any particular securities so much thereof as is not at the time
of the testators decease invested in securities of the kind mentioned in
section 341 shall be converted into money and invested in such securities.
(2) This section shall not apply if the deceased was a
Hindu. Muslim, Buddhist, Sikh or Jaina or an exempted person.
346.Investment of residue bequeathed for life, with
direction to invest in specified securities. Where the testator has bequeathed
the residue of his estate to a person for life with a direction that it shall
be invested in certain specified securities, so much of the estate as is not at
that time of his death invested in securities of the specified kind shall be
converted into money and invested in such securities.
347.Time and manner of conversion and investment. Such
conversion and investment as are contemplated by sections 345 and 346 shall be
made at such times and in such manner as the executor or administrator thinks
fit : and, until such conversion and
investment are completed, the person who would be for the
time being entitled to the income of the fund when so invested shall receive
interest at the rate of four per cent per annum upon the market-value (10 be
computed as at the date of the testators death) of such part of the fund as has
not been so invested :
Provided that the rate of interest prior to completion of
investment shall be six per cent. per annum when the testator was a Hindu,
Muslim, Buddhist, Sikh or Jaina or an exempted person.
348. Procedure where minor entitled to immediate payment or
possession of bequest, and no direction to pay to person on his behalf. — (1)
Where, by the terms of a bequest, the legatee is entitled to the immediate
payment or possession of the money or thing bequeathed, but is a minor, and
there is no direction in the will to pay it to any person on his behalf, the
executor or administrator shall pay or deliver the same into thc Court of the
District Judge, by whim or by whose District Delegate the probate was, or
letters of administration with the will annexed were, granted, to the account
of the legatee, unless the legatee is a ward of the Court of Wards.
(2)If the legatee is a ward of the Court of Wards, the
legacy shall be paid to the Court of Wards to his account.
(3)Such payment into the Court of the District Judge, or to
the Court of Wards, as the case may be, shall be a sufficient discharge for the
money so paid.
(4)Money when paid in under this section shall be invested
in the purchase of Government securities, which- with the interest thereon,
shall be transferred or paid to the person entitled thereto. or otherwise
applied for his benefit, as the Judge or the Court of Wards, as the case may
be. may direct.
CHAPTER XI
OF THE PRODUCE AND INTEREST OF LEGACIES
349.Legatees title to produce of specific legacy. The
legatee of a specific legacy is entitled to the clear produce threof, if any,
from the testators death.
Exception. —A specific bequest, contingent in its term; does
not comprise the produce of the legacy between the death of the testator and
the vesting of the legacy. The clear produce of it forms part of the residue of
the testators estate.
Illustrations
(i) A bequeaths his flock of sheep to B. Between the death
of A and delivery by his executor the sheep are shorn or some of the ewes
produce lambs. The wool and lambs are the property of B.
(ii) A bequeaths his Government securities to B, but
postpones the delivery of them till the death of C. The interest which falls
due between the death of A and the death of C belongs to B, and must, unless he
is a minor, be paid to him as it is received.
(iii) The testator bequeaths all his four per cent.
Government promissory notes to A when he shall complete the age of 18. A, if he
completes that age, is entitled to receive the notes, but the interest which
accrues in respect of them between the testators death and As completing 18,
form part of the residue.
350.Residuary legatees title to produce of residuary fund.
The legatee under a general residuary bequest is entitled to the produce of the
residuary fund from the testators death.
Exception. —A general residuary bequest contingent in its
terms does not comprise the income which may accrue upon the fund bequeathed
between the death of the testator and the vesting of the legacy. Such income
gees as undisposed of.
Illustrations
(i) The testator bequeaths the residue of his property to A,
a minor, to be paid to him when he shall complete the age of 18. The income
from the testators death belongs to A.
(ii) The testator bequeaths the residue of his property to A
when he shall complete the age of 18. A, if he completes that age, is entitled
to receive the residue. The income which has accrued in respect of it since the
testators death goes as undisposed of.
351.Interest when no time fixed for payment of general
legacy. Where no time has been fixed for the payment of a general legacy,
interest begins to run from expiration of one year from the testators death.
Exception. — (1) Where the legacy is bequeathed in
satisfaction of a debt, interest runs from the death of the testator.
(2) Where the testator was a parent or a more remote
ancestor of the legatee, or has put himself in the place of a parent of the
legatee, the legacy shall bear interest from the death of the testator.
(3) Where a sum is bequeathed to a miner with a direction to
pay for his maintenance out of it, interest is payable from the death of the
testator.
352.Interest when time fixed. Where a time has been fixed
for the payment of a general legacy, interest begins to run from the time so
fixed. The interest upon such time forms part of the residue of the testators
estate.
Exception. —Where the testator was s. parent or a work
remote ancestor of the legatee, or ha put himself in the place of a parent of
the legatee and the legatee is a minor, the legacy shall bear interest from the
death of the testator, unless a specific sum is given by the will for
maintenance, or unless the will contains a direction to the contrary.
353.Rate of interest. The rate of interest shall be four per
cent. per annum in all cases except when the testator was a Hindu, Muslim
Buddhist, Sikh or Jaina or an exempted person, in which case it shall be six
per cent per annum.
354.No interest on arrears of annuity within first year
after testators death. No interest is payable on the arrears of an annuity
within the first year from the death of the testator, although a period earlier
than the expiration of that year may have been fixed by the will for making the
first payment of the annuity.
355.Interest on sum to be invested to produce annuity. Where
a sum of money is directed to be invested to produce an annuity, interest is
payable on it from the death of the testator.
CHAPTER XII
OF THE REFUNDING OF LEGACIES
356.Refund of legacy paid under Courts orders. When an
executor or administrator has paid a legacy under the order of a Court, he- is
entitled to call upon the legatee-to refund in the event of the assets proving
insufficient to pay all the legacies.
357.No refund if paid voluntarily. When an executor or
administrator has voluntarily paid a legacy, he cannot call upon a legatee to
refund in the event of the assets proving insufficient to pay all the legacies.
358.Refund when legacy has become due on performance of
condition within further time allowed under section 137. When the time
prescribed by the will for the performance of a condition has elapsed, without
the condition having been performed, and the executor or administrator has
thereupon, without fraud, distributed the assets ; in such case, if further
time has been allowed under section 137 for the performance of the condition,
and the condition has been performed accordingly, the legacy cannot be claimed
from the executor or administrator, but those to whom he has
paid it are liable to refund the amount.
359.When each legatee compellable to refund in proportion.
When the executor or administrator has paid away the assets in legacies, and he
is afterwards obliged to discharge a debt of which he had no previous notice,
he is entitled to call upon each legatee to refund in proportion.
360.Distribution of assets. Where an executor or
administrator has given such notices as the High Court may, by any general
rule, prescribe or, if no such rule has been made, as the High Court would give
in an administration suit, for creditors and others to send in to him their
claims against the estate of the deceased, he shall, at the expiration of the
time therein named for sending n claims, be at liberty to distribute the
assets, or any part thereof, in discharge of such lawful claims as he knows of,
and shall not be liable for the assets so distributed to any person of whose
claim he shall not have had notice at the time of such distribution :
Provided that nothing herein contained shall prejudice the
right of any creditor or claimant to follow the assets, or any part thereof, in
the hands of the persons who may have received the same respectively.
361.Creditor may call upon legatee to refund. A creditor who
has not received payment of his debt may call upon a legatee who has received
payment of his legacy to refund, whether the assets of the testators estate
were or were not sufficient at the time of his death to pay both debts and
legacies ; and whether the payment of the legacy by the executor or
administrator was voluntary or not.
362.When legatee, not satisfied or compelled to refund under
section 361, cannot oblige one paid in full to refund. If the assets were
sufficient to satisfy all the legacies at the time of the testators death, a
legatee who has not received payment of his legacy, or he has been compelled to
refund under section 361, cannot oblige one who has received payment in full to
refund, whether the legacy were paid to him with or without suit, although the
assets have subsequently become deficient by the wasting of the executor.
363.When unsatisfied legatee must first proceed against
executor, if solvent. If the assets were not sufficient to satisfy all the
legacies at the time of the testators death, a legatee who has not received
payment of his legacy must, before he can call on a satisfied legatee to
refund, first proceed against the executor or administrator if he is solvent ;
but if the executor or administrator is insolvent or not liable to pay, the
unsatisfied legatee can oblige each satisfied legatee to refund in proportion.
364.Limit to refunding of one legatee to another. The
refunding of one legatee to another shall not exceed the sum by which the
satisfied legacy ought to have been reduced if the estate had been properly
administered.
Illustration
A has bequeathed 240 rupees to B, 480 rupees to C, and 720
rupees to D. The assets are only 1,200 rupees and, if properly administered,
would give 200 rupees to B, 400 rupees to C, and 600 rupees to D. C and D have
been paid their legacies in full, leaving nothing to B. B can oblige C to
refund 80 rupees, and D to refund 120 rupees.
365.Refunding to be without interest. The refunding shall in
all cases be without interest.
366.Residue after usual payments to be paid to residuary
legatee. The surplus or residue of the deceased’s property, after payment of
debts and legacies, shall be paid to the residuary legatee when any has been
appointed by the will.
367.Transfer of assets from Pakistan, to executor or
administrator in country of domicile for distribution. Where a person not
having his domicile in Pakistan has died leaving assets both in Pakistan and in
the country in which be had his domicile at the time of his death, and there
has been a grant or probate or letters of administration in Pakistan with
respect to the assets there and a grant of administration in the country of
domicile with respect to the assets in that country, the executor or
administrator, as the case may be, in Pakistan, after having given such notices
as are mentioned in section 360, and after having discharged, at the expiration
of the time therein named, such lawful claims as he knows of, may, instead of
himself distributing any surplus or residue of the deceased’s property to
persons residing out of Pakistan who are entitled thereto, transfer, with the
consent of the executor or administrator, as the case may be, in the country of
domicile, the surplus or residue to him for distribution to those persons.
CHAPTER XIII
OF THE LIABILITY OF AN EXECUTOR OR ADMINISTRATOR FOR DEVASTATION.
368.Liability of executor or administrator for devastation.
When an executor or administrator misapplies the estate of the deceased, or
subjects it to loss or damage, he is liable to make good the loss or damage so
occasioned.
Illustrations
(i) The executor pays out of the estate an unfounded claim.
He is liable to make good the loss.
(ii) The deceased had a valuable lease renewable by notice
which the executor neglects to give at the proper time. The executor is liable
to make good the loss.
(iii) The deceased had a lease of less value than the rent
payable for it, but terminable on notice at a particular time. The executor
neglects to give the notice. He is liable to make good the loss.
369.Liability of executor or administrator for neglect to
get any part of property.
When an executor or administrator occasions a loss to the
estate by neglecting to get in any part of the property of the deceased, he is
liable to make good the amount.
Illustrations
(i) The executor absolutely releases a debt due to the
deceased from a solvent person, or compounds with a debtor who is able to pay
in full. The executor u liable to make good the amount.
(ii) The executor neglects to sue for a debt till the debtor
is able to plead that the claim is barred by limitation and the debt is thereby
lost to the estate. The executor u liable to make good the amount.
PART X
Succession Certificates
370.Restriction on grant of certificates under this Part. —
(1) A succession certificate (hereinafter in this Part referred to as a certificate)
shall not be granted under this Part with respect to any debt or security to
which a right is required by section 212 or section 213 to
be established by letters of administration or probate:
Provided that nothing contained in this section shall- be
deemed to prevent the grant of a certificate to any person claiming to be
entitled to the effects of a deceased Pakistan Charistian, or to any part
thereof, with respect to any debt or security, by Reason that a right there to
can be established by letters of administration under this Act.
(2) For the purposes of this Part, " security "
means —
(a) any promissory note, debenture, stock or other security
of the Federal Government or of a provincial Government ;
(b) any bond, debenture, or annuity charged by Act of
Parliament of the United Kingdom on the revenues of India ;
(c) any stock or debenture of, or share in, a company or
other incorporated institution ;
(d) any debenture or other security for money issued by, or
on behalf of, a local authority ;
(e) any other security which the Provincial Government may,
by notification in the official Gazette, declare to be a security for the
purposes of this Part.
371.Court having jurisdiction to grant certificate. Court
having jurisdiction to grant certificate.. Court having jurisdiction to grant
certificate. The District Judge within whose jurisdiction the deceased
ordinarily resided at the time of his death, or, if at that time he had no
fixed place of residence, the District Judge, within whose jurisdiction any
part of the property of the deceased may be found, may grant a certificate
under this Part.
372.Application for certificate. — (1) Application for such
a certificate shall be made to the District Judge by a petition signed and
verified by or on behalf of the applicant in the manner prescribed by the Code
of Civil Procedure, 1908, for the signing and verification of a plaint by or on
behalf of a plaintiff, and setting forth the following particulars, namely : —
(a) the time of the death of the deceased ;
(b) the ordinary residence of the deceased at the time of
his death and, if such residence was not within the local limits of the
jurisdiction of the Judge to whom the application is made, then the property of
the deceased within those limits ;
(e) the family or other near relatives of the deceased and
their respective residences ;
(d) the right in which the petitioner claims ;
(e) the absence of any impediment under section 370 or under
any other provision of this Act or any other enactment, to the grant of the
certificate or to the validity thereof if it were (ranted ; and
(f) the debts and securities in respect of which the
certificate is applied for.
(2) If the petition contains any averment which the person
verifying it knows or believes to be false, or does not believe to be true,
that person shall be deemed to have committed an offence under section !98 of
the Pakistan Penal Code.
(3) Application for such a certificate may be made in
respect o f any debt or debts due to the deceased creditor or in respect of
portions thereof.
373.Procedure on application. — (1) If the District Judge is
satisfied that there is ground for entertaining the application, he shall fix a
day for the hearing thereof and can notice of the application and of 1 the day
fixed for the hearing —
(a) to be served on any person to whom, in the opinion
of the Judge, special notice of the application should be
given, and
(b) to be posted on some conspicuous part of the court-house
and published in such other manner, if any, as the Judge, subject to any rules
made by the High Court in this behalf,
thinks fit, and upon the day fixed, or as soon thereafter as
may be practicable, shall proceed to decide in a summary manner the right to
the certificate.
(2)When the Judge decides the right thereto to belong to the
applicant, the Judge shall make an order for the grant of the certificate to
him.
(3)If the Judge cannot decide the right to the certificate
without determining questions of law or fact which seem to be too intricate and
difficult for determination in a summary proceeding, he may nevertheless grant
a certificate to the applicant if he appears to be the person having prima
facie the best title thereto.
(4)When there are more applicants than one for a
certificate, and it appears to the Judge that more than one of such applicants
are interested in the estate of the deceased, the Judge may, in deciding to
whom the certificate is to be granted, have regard to the extent of interest
and the fitness in other respects of the applicants.
374.Contents of certificate. When the District Judge grants
a certificate, he shall therein specify the debts and securities set forth in
the application for the certificate, and may thereby empower the person to whom
the certificate is granted —
(a) to receive interest or dividends on, or
(b) to negotiate or transfer, or
(c) both to receive interest or dividends on, and to
negotiate or transfer, the securities or any of them.
375.Requisition of security from grantee of certificate.
(l)The District Judge shall in any case in which he proposes to proceed under
sub-section (3) or sub-section (4) of section 373, and may, in any other case,
require, as a condition precedent to the granting oa certificate, that the
person to whom he propose to make the grant shall give to the Judge a bond with
one or more suicty or sureties, or other sufficient security, for rendering an
account of debts and securities received by him and for indemnity of persons
who may be entitled to the whole or any part of those debts and securities.
(2) The Judge may, on application made by petition and on
cause shown to his satisfaction and upon such terms as to security or providing
that the money received be paid into Court, or otherwise, as he thinks fit,
assign the bond or other security to some proper person, and that person shall
thereupon be entitled to sue thereon in his own name as if it had been
originally given to him instead of to the Judge of the Court, and to recover,
as trustee for all persons interested, such amount as may be recoverable
thereunder.
376.Extension of certificate. — (1) A District Judge may, on
the application of the holder of a certificate under this Part, extend the
certificate to any debt or security not originally specified therein, and every
such extension shall have the same effect as if the debt or security , o which
the certificate is extended had been originally specified therein.
(2) Upon the extension of a certificate, powers with respect
to the receiving of interest or dividends on, or the negotiation or transfer
of, any security to which the certificate has been extended may be conferred,
and a bond or further bond or other security for the purposes mentioned in
section 375 may be required, in the same manner as upon the original grant of a
certificate.
377.Forms of certificate and extended certificate.
Certificates shall be granted and extensions of certificates shall be made, as
nearly as circumstances admit, in the forms set forth in Schedule VIII.
378.Amendment of certificate in respect of powers as to
securities. Where a District Judge has not conferred on the holder of a
certificate any power with respect to a security
specified in the certificate, or has only empowered him to
receive interest or dividends on, or to negotiate or transfer, the security,
the Judge may, on application made by petition and on cause shown to his
satisfaction, amend the certificate by conferring any of the powers mentioned
in section 374 or by substituting any one for any other of those powers.
379.Mode of collecting Court-fees on certificates. — (1)
Every application for a certificate or for the extension of a certificate shall
be accompanied by a deposit of a sum equal to the fee payable under the
Court-fees Act, 1870, in respect of the certificate or extension applied for.
(2) If the application is allowed, the sum deposited by the
applicant shall be expended, under the direction of the Judge, in the purchase
of the stamp to be used for denoting the fee payable as aforesaid.
(3) Any sum received under sub-section (1) and not expended
under sub-section (2) shall be refunded to the person who deposited it.
380.Local extent of certificate. A certificate under this
Part shall have effect throughout Pakistan.
It shall also apply in Pakistan after the separation of
.Pakistan from India to certificates granted before the date of the separation,
or on or after that date in proceedings pending at that date in any of the
territories which on that date were comprised in India.
381.Effect of certificate. Subject to The provisions of this
Part, the certificate of the District Judge shall, with respect to the debts
and securities specified therein, be conclusive as against the persons owing
such debts or liable on such securities, and shall, notwithstanding any
contravention of section 370, or other defect, afford full indemnity to all
such persons as regards all payments made, or dealings had, in good faith in
respect of such debts or securities to or with the person to whom the
certificate was granted.
382.Effect of certificate granted or extended by Pakistan
representative in Foreign State. Where a certificate in the form, as nearly as
circumstances admit, of Schedule VIII has been granted, to a resident within a
Foreign State by the Pakistan representative accredited to the State, or where
a certificate so granted has been extended in such form by such representative,
the certificate shall, when stamped in accordance with the provisions of the
Court-fees Act, 1870, with respect to certificates under this Part, have the
same effect in Pakistan as a certificate granted or extended under this Part.
383.Revocation of certificate. A certificate granted under
this Part may be revoked for any of the following causes, namely : —
(a) that the proceedings to obtain the certificate were
defective in substance ;
(b) that the certificate was obtained fraudulently by the
making of a false suggestion, or by the concealment from the Court of something
material To the case ;
(c) that the certificate was obtained by means of an untrue
allegation of a fact essential in point of law to justify the grant thereof,
though such allegation was made in ignorance or inadvertently ;
(f) that the certificate has become useless and inoperative
through circumstances ;
(e) that a decree or order made by a competent Court in a
suit or other proceeding with respect to effects comprising debts or securities
specified in the certificate renders it proper that the certificate should be
revoked.
384.Appeal. — (1) Subject to the other provisions of this
Part, an appeal shall lie to the High Court from an order of a District Judge
granting, refusing or revoking a certificate
under this Part, and the High Court may, if it thinks fit,
by its order on the appeal, declare the person to whom the certificate should
be granted, and direct the District Judge, on application being made therefor,
to grant it accordingly, in supersession of the certificate, if any, already
granted.
(2)An appeal under sub-section (1) must be preferred within
the time allowed for an appeal under the Code of Civil Procedure, 1908.
(3)Subject to the provisions of sub-section (1) and to the
provisions as to reference to and revision by the High Court and as to review
of judgment of the Code of Civil Procedure, 1908, as applied by section 141 of
that Code, an order of a District Judge under this Part shall be final.
385.Effect on certificate of previous certificate, probate
or letters of administration. Save as provided by this Act, a certificate
granted thereunder in respect of any of the effects of a deceased person
"shall be invalid if there has been a previous grant of such a certificate
or of probate or letters of administration in respect of the estate of the
deceased person and if such previous grant is in force.
386.Validation of certain payments made in good faith to holder
of invalid certificate. Where a certificate under this Part has been superseded
or is invalid by reason of the certificate having been revoked under section
383, or by reason of the grant of a certificate to a person named in an
appellate order under section 384, or by reason of a certificate having been
previously granted, or for any other cause, all payments made, or dealings had,
as regards debts and sec in ides specified in the superseded or invalid
certificate to or with the holder of that certificate in ignorance of its
supersession or invalidity, shall be held good against claims under any other
certificate.
387.Effect of decisions under this Act, and liability of
holder of certificate thereunder. No decision under this Part upon any question
of right between any parties shall be held to bar the trial of the same
question in any suit or in any other proceeding between the same parties, and
nothing in this Part shall be construed to affect the liability of any person
who may receive the whole or any part of any debt or security, or any interest
or dividend on any security to account therefor to the person lawfully entitled
thereto.
388.Investiture of inferior Courts with jurisdiction of
District Court for purposes of this Act. — (1) The Provincial Government may,
by notification in the official Gazette, invest any Court inferior in grade to
;. District Judge with power to exercise the functions of a District Judge
under this Part.
(2) Any inferior Court so invested shall, within the local
limits of its jurisdiction, have concurrent jurisdiction with the District
Judge in the exercise of all the powers conferred by this Part upon the
District Judge, and the provisions of this Part .relating to the District Judge
shall apply to such an inferior Court as if it were a District Judge :
Provided that an appeal from any such order of an inferior
Court as is mentioned in sub- section (I) of section 384 shall lie to the
District Judge, and not, the High Court, and that the District Judge may, if
lie think lit, by his order on the appeal, make any such declaration and
direction as that sub-section authorises the High Court to make by its order on
an appeal from an order of a District Judge.
(3) An order of a District Judge on an appeal from an order
of an inferior Court under the last foregoing sub-section shall, subject to the
provisions as to reference to and revision by the High Court and as to review
of judgment of the Code of Civil Procedure, 1908, as applied by section 141 of
that Cod, be final.
(4)The District Judge may withdraw any proceedings under
this Part from an inferior Court, and may either himself dispose of them or
transfer them to another such court established within the local limits of the
jurisdiction of the District Judge and having authority to dispose of the
proceedings.
(5)A notification under rub-section (1) may specify any
inferior Court specially or any class of such Courts in any local urea.
(6)Any Civil Court which for any of the purposes of any
enactment is subordinate to, or subject to the control of, a District Judge
shall, for the purposes of this section, be deemed to be a Court inferior in
grade to a District Judge.
389.Surrender of superseded and invalid certificates. ---(1)
When a certificate under this Part has been superseded or is invalid from any
of the causes mentioned in section 386, the holder thereof shall, on the
requisition of the Court which granted it, deliver it up to that Court.
(2) If he wilfully and without reasonable cause omits so to
deliver it up, he shall be punishable with fine which may extend to one
thousand rupees, or with imprisonment for a term which may extend to three
months or with both.
390.Provisions with respect to certificates under Bombay
Regulation VIII of 1827.
Notwithstanding anything in, Sind Regulation No. VIII of
1827, the provisions of section 370, sub-section (2) section 372, sub-section
(1), clause (f), and sections 374, 375, 376, 377, 378, 379, 381, 383, 384, 387,
388 and 389 with respect to certificates under this Part and applications therefor,
and of section 317 with respect to the exhibition of inventories and accounts
by executors and administrators, shall, so far as they can be made applicable,
apply, respectively, to certificates granted under that Regulation, and
applications made for certificates thereunder, after the 1st day of May, 1889,
and to the exhibition of inventories and accounts by the holders of such
certificates so .granted.
PART XI Miscellaneous
391. Saving. Nothing in Part VIII, Part IX or Part X shall —
(i) validate any testamentary disposition which would
otherwise have been invalid ; (ii) invalidate any such disposition which would
otherwise have been valid ;
(iii) deprive any person of any right of maintenance to
which he would otherwise have been entitled ; or
(iv) affect the Administrator Generals Act, 1913.
392. Repeals.} Rep. by the Repealing Act, 1927 (XII of
1927), s. 2 and Sch.
SCHEDULE I
(See section 28) TABLE OF CONSANGUNITY
Great
Grandfather’s
Father
|
4
|
|
|
|
|
Great
|
Great
|
|
|
|
Grandfather
|
Great
|
|
|
|
|
Uncle.
|
|
|
|
3
|
5
|
|
|
|
Grandfather.
|
Great
|
|
|
|
|
Uncle.
|
|
|
|
2
|
4
|
|
|
|
Father.
|
Uncle.
|
Great
|
|
|
|
|
Uncle’s
|
|
|
|
|
son.
|
|
|
1
|
3
|
5
|
|
|
The Person
|
Brother.
|
Cousin-
|
Second
|
|
whose
|
|
german.
|
cousin.
|
|
Relatives are
|
|
|
|
|
to be
|
|
|
|
|
reckoned.
|
|
|
|
|
|
2
|
4
|
6
|
|
Son.
|
|
|
Son of
|
|
|
|
Nephew.
|
the
|
|
|
|
|
cousin-
|
|
|
|
|
german.
|
|
1
|
|
3
|
5
|
|
Grandson.
|
|
Son of
|
Grandson
|
|
|
|
the
|
of the
|
|
|
|
Nephew
|
Cousin-
|
|
|
|
of
|
german.
|
|
|
|
Brother’s
|
|
|
|
|
grandson.
|
|
|
2
|
|
|
|
|
Great
|
|
|
|
|
Grandson.
|
|
|
|
SCHEDULE II
PART I
(SEE SECTION 54)
(1)Father and mother.
(2)Brothers and sisters (other than uterine brothers and
sisters) and lineal descendants of such of them as have-predeceased the
intestate.
(3)Paternal grandfather and paternal grandmother.
(4)Children of the paternal grandfather and the lineal
descendants of such of them as have predeceased the intestate.
(5)Paternal grandfathers .father and mother.
(6)Paternal grandfathers fathers children and the lineal
descendants of such of them as have predeceased the intestate.
PART II
(SEE SECTION 55)
(1)Father and mother.
(2)Brothers and sisters (other than uterine brothers and
sisters) and lineal descendants of such of them as shall have predeceased the
intestate.
(3)Paternal grandfather and paternal grandmother.
(4)Children of the paternal grandfather and the lineal
descendants of such of them as have p: deceased (he intestate.
(5)Paternal grandfathers father and mother.
(6)Paternal grandfathers fathers children and the lineal
descendants of such of them as have predeceased the intestate.
(7)Uterine brothers and sisters and the lineal descendants
of such of them as have predeceased the intestate.
(8)Maternal grandfather and maternal grandmother.
(9)Children of the maternal grandfather and the lineal
descendants of such of them as have predeceased the intestate.
(10)Widows of brothers or half-brothers.
(11)Paternal grandfathers sons widow.
(12)Maternal grandfathers sons widow.
(13)Widowers of deceased lineal descendants of the intestate
who have not married again before the death of the intestate
(14)Maternal grandfathers father and mother.
(15)Children of the maternal grandfathers father and lineal
descendants of such of them as have predeceased the intestate.
(16)Children of the paternal grandmother and the lineal
descendants of such of them as have predeceased the intestate.
(17)Paternal grandmothers father and mother.
(18)Children of the paternal grandmothers tether and the
lineal descendants of such of
them as have predeceased the intestate.
SCHEDULE III
(SEE SECTION. 57)
PROVISIONS OF PART VI APPLICABLE TO CERTAIN WILLS
AND CODICIL DESCRIBED IN SECTION 57.
Sections 59, 61, 62, 63, 64, 68, 70, 71, 73, 74, 75, 76, 77,
78, 79, 80, 81, 82, 83, 84, 85, 86, 87. 88, 89, 90, 95, 96, 98, 101, 102, 103,
104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 119, 120,
121, 122, 123, 124, 125, 126, 127. 128, 129, 130, 131, 132, 133, 134, 135, 136,
137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152,
153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168,
169, 170, 171, 172, 173, 174, 175, 176, 177, 178,, 179, 180, 181, 182, 183,
184, 185, 186, 187, 188, 189 and 190.
Restrictions and modifications in application of foregoing
sections.
1. Nothing therein contained shall authorise a testator to
bequeath property which he could not have alienated inter vivos, or to deprive
any persons of any right of maintenance of which, but for the application of
these sections, he could not deprive them by will.
2.Nothing therein contained shall authorise any Hindu,
Buddhist, Sikh or Jaina, to create in property any interest which he could not
have created before the first day of September, 1870.
3.Nothing therein contained shall affect any law of adoption
or intestate succession.
4.In applying section 70 the words " than by marriage
or " shall be omitted.
5.In applying any of the following sections, namely,
sections seventy-five, seventy-six, one hundred and five, one hundred and nine,
one hundred and eleven, one hundred and twelve, one hundred and thirteen, one
hundred and fourteen, one hundred and fifteen, and one hundred and sixteen to
such wills and codicils the words " son," "sons,"
"child," and "children" shall be deemed to include an
adopted child; and the word "grand-children" shall be deemed to
include the children, whether adopted or natural-born, of a child whether
adopted or natural-born; and the expression "daughter-in-law" shall
be deemed to include the wife of an adopted son.
SCHEDULE IV
SEE SECTION 274 (2)
FORM OF CERTIFICATE
I, A. B., Registrar (or as the case may be) of the High
Court of Judicature at (or as the case may be) hereby certify that on the day
of , the High Court of Judicature at (or as the case may be) granted probate of
the will (or letters of administration of the estate) of C.D., late of ,
deceased, to E.F. of and G.H. of and that such probate (or letters) has (or
have) effect over all the property of the deceased throughout Pakistan.
SCHEDULE V
SEE SECTION 284 (4)
FORM OF CAVEAT
Let nothing be done in the matter of the estate of A.B, late
of , deceased, who died on the day of at without notice to C.D. of
SCHEDULE VI
(SEE SECTION 289)
FORM OS PROBATE
I, , Judge of the District of or Delegate appointed for
granting probate or letters of administration in (here insert the limits of the
Delegates jurisdiction), hereby make known that on the day of in the year ,the
last will of , late of , a copy whereof is hereunto annexed, was proved and
registered before me, and that administration of the property and credits of
the said deceased, and in any way concerning his will was granted to, the
executor in the said will named, he having undertaken to administer the same,
and to make a full and true inventory of the said property and credits and
exhibit the same in this Court within six months from the date of this grant or
within such further time as the Court may, from time to time, appoint, and also
to render to this Court a true account of the said property and credits within
one year from the same date, or within such further time as the Court may, from
time to time, appoint.
SCHEDULE VII
(SEE SECTION 290)
FORM OF LETTERS OF ADMINISTRATION
I, , Judge of the District of or Delegate appointed for
granting probate or letters of administration in (here insert the limits of the
Delegates jurisdiction), hereby make known that on the day of letters of
administration (with or without the will annexed, as the case may be), of the
property and credits of late of , deceased, were granted to , the father (or as
the case may be) of the deceased, he having undertaken to administer the same
and to make a full and true inventory of the said property and credits and
exhibit the same in this Court within six months from the date of this grant or
within such further time as the Court may, from time to time, appoint, and also
to render to this Court a true account of the said property and credits within
one year from the same date, or within such further time as the Court may, from
time to time, appoint.
SCHEDULE VIII
(SEE SECTION 377)
FORMS OF CERTIFICATE AND EXTENDED CERTIFICATE
In the Court of To A.B. Whereas you applied on the day of
|
Serial
|
Number of debtor.
|
Amount of debt, including
|
Description and date of
|
|
No.
|
|
interest, on date of
|
instrument, if any, by
|
|
|
|
application for certificate.
|
which the debt is
|
|
|
|
|
secured.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Securities
Description
|
Distinguishing
|
Name, title or
|
Amount or par
|
|
|
|
number or letter
|
class of security.
|
value of security.
|
|
|
|
of security.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
This certificate is accordingly granted to you and empowers
you to collect those debts and to receive interest dividends on to negotiate to
transfer those securities.
Dated this day of
|
|
|
|
District Judge.
|
|
Serial
|
Number of debtor.
|
Amount of debt, including
|
Description and date of
|
|
No.
|
|
interest, on date of
|
instrument, if any, by
|
|
|
|
application for extension.
|
which the debt is
|
|
|
|
|
secured.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Securities
|
|
|
|
|
Description
|
|
|
Distinguishing
|
Name, title or class
|
Amount or par
|
|
number or letter of
|
of security.
|
value of security.
|
|
security.
|
|
|
This extension empowers A.B to collect those debts and to
receive interest dividends on to negotiate to transfer those securities.
Dated this day of
District Judge.
SCHEDULE IX.
ENACTMENTS REPEALED. Rep. By the repealing Act, 1927 (XII of
1927), s. 2 and Sch.
No comments:
Post a Comment